A   TREATISE 


ON  THE 


LAW    OF     DEEDS 


THEIE    FORM,    EEQUISITES,   EXECUTIOU",    ACKNOWLEDGMENT,    EEGIS- 
TEATION,  CONSTRUCTION  AND  EFFECT. 


THE  ALIENATION  OF  TITLE  TO  REAL  PROPERTY  BY  VOL- 
UNTARY TRANSFER. 

TOGETHEE  WITH  CHAPTERS  ON  TAi  DEEDS  AND  SHEEIFF'S  DEEDS. 


BY 

UOBEUT  T.  DEVLI:N^ 

COUNSELOR  AT  LAW. 

SECOND  EDITION  REVISED  AND  ENLARGED 

IN  THREE  VOLUMES. 
Volume   II. 


SAN  FRANCISCO: 
BANCROFT-WHITNEY    CO. 

438  Montgomery  Street. 
1897. 


Copyright,  1887. 
By  ROBERT  T.  DEVLIN. 

Copyright,  1897. 
By  ROBERT  T.  DEVLIN. 


THE    LAW    OF    DEEDS. 


CHAPTER  XX. 

ACKNOWLEDGMENT    OF    DEEDS    BY    MARRIED    WOMEN. 

^  548.     Acknowledgment  an  essential  part  of  the  deed. 

^  548a.  Modern  Legislation. 

§  548  b.  Deed  defectively  acknowledged  not  an  estoppel. 

§  549.     The  law  in  California. 

§  550.     Comments. 

§  551.     Separate  examination  of  wife. 

§  r)52.     Examination  private  if  husband  is  excluded. 

§  553.     Comments. 

§  554.     Husband  hearing  examination. 

§  555.     Construction  of  particular  certificates. 

^  556.     Presumption  of  private  examination. 

^  557.     Comments. 

§  558.     Identity  should  appear. 

§  559.     Statement  of  wish  not  to  retract. 

§  560.     Explanation  of  contents  of  deed. 

§  560  a.  Explanation  to  widow. 

§  561.     Explanation  in  presence  of  husband. 

§  561  a.  Explanation  of  title. 

§  562.     Where  officer  himself  not  required  to  explain, 

§563.     Omission  of  explanation. 

§  563  a.  Presumption  of  knowledge. 

§  564.     Acknowledgment  by  deaf  mutes. 

§  565.     Execution  voluntary. 

§  566.     Equivalent  words  for  voluntary  act — Comments. 

§  567.     Instajices. 

§  568.    Omission  of  the  word  "  fear  "—Conflicting  decisions. 

§  569.     Comments. 

§  569  a.  Unacknowledged  contract  to  convey  land. 

§  5r0.     Other  cases  in  which  certificates  have  Ijeen  construed. 

§  571.     Substantial  compliance  with  the  statute  euilicicut. 

§  i  72.     Surplusage. 

§  573.     Community  property. 

^  574.    Married  woman  acting  as /erne  «oZ«. 

§  575.     Comments. 

§  548.      Acknowledgment   an    essential     part    of    the 

deed.  —  At  coiiiinon  law,  a  married  woman  had  no 
power  to  make  a  conveyance  unless  by  some  matter  of 
record.     The  only  metliods  by  which  at  common  law  slie 

(739a) 


(>fi''*aS7 


§  548  ACKNOWLEDGMENT    BY    MARRIED    WOMEN.  740 

could  convey  her  property  were  by  a  fine  or  common  re- 
covery.    While  now  by  statute  she  is  permitted  to  con- 
vey  her  estate,   in  some   States  the  concurrence  of  her 
husband  being  necessary,  and  in  others  not,  yet,  to  make 
her  conveyance  effective,  the  statutory  provisions  concern- 
ing the  form  and  mode  of  her  conveyance  must  be  com- 
plied with.^     In  nearly  all  of  the  States  the  certificate  of 
acknowledgment  of  a  married  woman  of  her  deed   is  a 
material  part  of  it,  and  absolutely  essential  to  its  validity. 
The  common-law  restriction  on  her  right  to  convey  has 
been  relaxed,  but  still  it  results  from  such  statutes  as  re- 
gard her  acknowledgment  as   a   part  of  the  conveyance 
that  the  deed  is  void  without  such  acknowledgment.     In 
a  case  in  Illinois,  Mr.  Justice  Caton  correctly  stated  the 
rule  which  generally  prevails,   and   observed:   "Without 
such  acknowledgment,  the  deed  was  absolutely  void,  and 
had  no  more  vitality  than  a  piece  of  blank  paper.     Only 
by  virtue  of  such   acknowledgment  certificate  could  the 
deed  become  operative.    Its  execution  could  be  proved  in 
no  other  possible  way,  and  in  no  other  way  could  she  con- 
vey.    The  certificate  of  acknowledgment  of  a  deed  from 
&  feme  covert  to  convey  her  own  lands  is  as  much   an   es- 
sential  part  of  the   execution  of   the  deed  as  her  seal  or 
signature,  and,  without  it,  the  law  presumes  that  it  was 
obtained  by  fraud  or  coercion."  ^     Not  even  an  equitable 

1  See,  for  a  general  discussion  of  this  subject,  2  Kent's  Com.  151. 

=*  Mariner  v.  Saunders,  5  Gilm.  113,  125.  See,  also,  to  the  same  effect, 
Hoskinson  v.  Adkins,  77  Mo.  537;  Mason  v.  Brock,  12  111.  273;  52  Am. 
Dec.  490;  Ewald  v.  Corbett,32Cal.  493;  Bagby  i;.  Emberson,  79  Mo.  139; 
McLeran  v.  Benton,  43  Cal.  467 ;  Wambole  v.  Foote,  2  Dakota,  1 ;  Terry 
V.  Hammond,  47  Cal.  32;  Malloy  v.  Bruden,  88  N.  0.  305;  Morrison  v. 
Wilson,  13  Cal.  498;  73  Am.  Dec.  593;  McLawrin  v.  Wilson,  16  S.  C.402; 
Dugger  V.  ColUns,  69  Ala.  324;  Johnson  v.  Bryan,  62  Tex.  623;  Mathews 
V.  Davis,  102  Cal.  202;  Knight  v.  Paxton,  124  U.  S.  552;  Hogan  v.  Hogan, 
89  111.  427 ;  Bernard  v.  Elder,  50  Miss.  336 ;  Allen  v.  Lenoir,  53  Miss.  321 ; 
Denv.  Lewis,  8  Ired.  70;  47  Am.  Dec.  338;  Schroder  v.  Keller,  84  111. 
46;  Coleman  tJ.  Billings,  89  111.  183;  Leonis  v.  Lazzarovich,  55  Cal.  52; 
]\Iuir  V.  Galloway,  61  Cal.  498;  Pickens  v.  Knisely,  29  W.  Va.  1;  6  Am. 
St.  Rep.  622;  Glidden  v.  Strupler,  52  Pa.  St.  400;  Spencer  v.  Reese,  165 
F'a.  St.  158;  Evans  v.  Commonwealth,  4  S.  &  R.  272;  8  Am.  Dec.  711; 
Jourdan  v.  Jourdan,9  S.  &  R.  208;  11  Am.  Dec.  724;  Watson  v.  Bailey,  1 
Biun.  470;  2  Am.  Dec.  462;  Ba.rnet  v.  Barnet,  15  S.  &  R.  72;  16  Am. 


741  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §   548 

title  passes  by  the  deed  of  a  married  woman  defectively- 
acknowledged/ 

Dec.  516;  Graham  v.  Long,  65  Pa.  St.  383;  Little  v.  Dodge,  32  Ark.  453; 
Shryoc.k  v.  Cannon,  39  Ark.  434;  Dengenhart  v.  Cracraft,  36  Ohio  St. 
549;  Purcellt;.Goshorn,17  0hio,  105;  49  Am.  Dec.  448;  Chesnutv.  Shane, 
16  Ohio,  599;  47  Am.  Dec.  387;  Reynolds  v.  Kingsbury,  15  Iowa,  238; 
Grove  v.  Todd,  41  Md.  633;  20  Am.  Rep.  76;  Steffey  v.  Steffey,  19  Md. 
5;  Krieger  v.  Crocker,  118  Mo.  531;  AVannel  v.  Kem,  57  Mo.  478;  Bur- 
nett V.  McCluey,  78  Mo.  676;  Johnson  v.  Taylor,  60  Tex.  360;  Looney  v. 
Adamson,  48  Tex.  619;  Thayer  v.  Torrey,  37  N.  J.  L.  339. 

In  Mason  v.  Brock,  supra,  the  court  say:  "A  married  woman  can  be 
divested  only  of  her  real  estate  in  the  mode  prescribed  by  statute."  In 
Martin  v.  Dwelly,  6  Wend.  9,  21  Am.  Dec.  245,  Mr.  Justice  Sutherland 
says :  "  By  the  common  law  a  feme  covert  could  not,  by  uniting  with  her 
husband  in  any  deed  or  conveyance,  bar  herself  or  her  heirs  of  any  es- 
tate of  which  she  was  seised  in  her  own  right,  or  of  her  right  of  dower 
in  the  real  estate  of  her  husband.  This  disability  is  supposed  to  be 
founded  on  the  principle  that  the  separate  legal  existence  of  the  wife  ia 
suspended  during  the  marriage,  and  is  strengthened  by  the  considera- 
tion that,  from  the  nature  of  the  connection,  there  is  danger  that  the 
influence  of  the  husband  may  be  improperly  exerted,  for  the  purpose  of 
forcing  the  wife  to  part  with  her  rights  in  his  favor.  The  law,  therefore, 
considers  any  such  deed  or  conveyance  as  the  act  of  the  husband  only, 
although  the  wife  may  have  united  in  it,  and  restrained  its  operation  to 
the  husband's  interest  in  the  premises,  and  gives  to  it  the  same  effect  aa 
though  he  alone  had  executed  the  conveyance.  The  only  mode  in  wliich 
&Jeme  covert  could,  at  common  law,  convey  her  real  estate  was  by  unit- 
ing with  her  husband  in  levying  a  fine.  This  is  a  solemn  proceeding  of 
record  in  tlie  face  of  the  court,  and  the  judges  are  supposed  to  watch 
over  and  protect  the  rights  of  the  wife,  and  to  ascertain  by  a  private  ex- 
amination that  her  participation  in  the  act  is  voluntary  and  uncon- 
strained. This  is  the  principle  upon  which  the  efficacy  of  a  fine  is  put 
by  most  of  the  authorities;  3  Cru.  Dig.  153,  tit.  35,  c.  10;  2  Inst.  515; 
1  Vent.  121  a.  But  whatever  may  be  tlie  foundation  of  tlie  doctrine,  it 
is  now  fully  established.  Our  statute  declares  that  no  estate  of  a  feme 
covert  residing  in  this  State  shall  pass  by  her  deed  without  a  previous 
acknowledgment  made  by  her  before  a  proper  officer,  apart  from  her 
husband,  that  she  executed  such  deed  frcjely,  without  fear  or  compulsion 
of  lier  husband:  1  Rev.  Laws,  369.  This  provision,  it  will  be  observed, 
is  an  enlargement,  and  not  a  restraint,  of  the  common-law  powers  of  a 
feme  coiert.  It  authorizes  a  less  formal  mode  of  conveyance  than  was 
known  to  the  common  law.  It  gives  to  her  deed,  when  duly  acknowl- 
edged, the  same  power  and  effect  as  a  fine;  but,  if  not  acknowledged 
according  to  the  directions  of  the  statute,  it  declares  that  no  estate  shall 
pass  by  it.  It  leaves  it  as  it  would  have  stood  at  the  common  law,  if  the 
statute  had  never  been  passed,  absolutely  void  and  inoperative."  But 
see  Hawes  v.  Mann,  8  Bins.  21. 

*  Bagby  v.  Emberson,  79 Mo.  139.     See  Wambole  v.  Foote,  2  Dakota,  1. 


§   548a         ACKNOWLEDGMENT    BY    MARRIED    WOMEN.  742 

§  54:8a.  3Ioderii  Leg-islatiou. — At  common  law  hus- 
band and  wife  were  one  person,  she,  by  marriage,  losing 
all  her  legal  identity  and  becoming  civilly  dead.  Her 
existence  was  merged  in  that  of  her  husband,  and  she 
was  said  to  be  a  feme  covert}  In  equity,  however,  her 
separate  existence  was  recognized.  While  it  was  assumed 
that  the  identity  of  the  wife  was  lost,  it  was  presumed 
that  she  was  under  the  dominion  of  her  husband,  and 
would  act  in  conformity  with  his  desires  and  perform  no 
act  contrary  to  his  wishes.  Husband  and  wife  could  not 
contract  with  each  other,  because,  in  law,  they  were  not 
two  parties  but  only  one;  but,  in  equity,  effect  was  given 
to  a  husband's  promises,  and  transfers  made  by  him 
to  his  wife  were  recognized  and  enforced.  But  now 
many  restrictions  have  been  removed  by  legislation 
and  the  tendency  is  to  allow  her  the  same  freedom 
to  contract  and  dispose  of  her  property  that  she  would 
possess  if  unmarried.  In  accordance  with  this  tendency 
statutes  now  exist  in  many  of  the  states  providing  that 
her  acknowledgment  to  a  deed  may  be  made  in  the  same 
manner  as  if  she  were  a  feme  sole.  Still,  even  in  these 
states,  the  validity  of  conveyances  made  before  the  pas- 
sage of  such  statutes,  depends  upon  her  acknowledgment 
having  been  taken  and  certified  with  the  strictness 
formerly  required.  Where  the  acknowledgment  of  a 
married  woman  is  taken  as  if  she  were  a  feme  sole,  it 
is  no  longer  essential  to  the  validity  of  her  deed.  Her 
deed,  unacknowledged,  will,  in  such  states,  certainly  bind 
her  and  be  valid  as  against  all  those  having  notice.  In 
some  of  the  states  the  law  relative  to  the  acknowledgment 
of  deeds  by  married  women,  as  distinguished  from  the 
general  law^  relating  to  acknowledgment,  is  fast  becoming 
obsolete.  This  chapter  is  devoted  exclusively  to  a  consid- 
eration of  those  statutes  which  require  that  the  acknowl- 
edgment of  a  deed  of  a  married  woman  should  be  taken 
so  as  insure  her  freedom  from  all  compulsion  on  the  part 
of  her  husband,  and  that  declare  the  acknowledgment  an 
essential   and  indispensable  part  of  the  deed. 

1  2  Kent's  Com.  12:);  Story  Eq.  §§  1367,  1370;  1  Blackst.  Com.  442; 
1  Bishop  Mar.  &  Div.  §§  754-760. 


743    ACKNOWLEDGMENT  BY  MARRIED  WOMEN.    §§  548  L,  549 

§  548  b.  Deed  defectively  acknowledged  not  an 
estoppel. — The  deed  of  a  married  woman  defectively 
acknowledged  passes  no  title,  and  a  purchaser  from 
her  after  the  death  of  her  husband,  with  notice  of  the 
prior  deed,  does  not  become  a  trustee  for  the  first  pur- 
chaser, but  may  maintain  ejectment  against  him.  Such 
a  deed  defectively  acknowledged  does  not  operate  as  an 
estoppel  against  her,  and  she  cannot  ratify  it  by  mere 
recitals  and  admissions  in  other  deeds  or  pleadings.  Her 
only  mode  of  ratification  is  to  properly  acknowledge  it, 
or  to  execute  another  deed  properly  acknowledged.^ 

§  549.  The  law  in  California. — A  recent  decision  in 
California  has  left  in  some  doubt  whether  a  deed  of  a 
married  woman  is  invalid  or  not,  because  the  certificate 
of  acknowledgment  is  defective.  Prior  to  the  adoption 
of  the  codes,  the  same  rule  prevailed  as  to  the  necessity 
for  the  acknowledgment  by  a  married  woman  of  her  con- 
veyance as  obtains  elsewhere.  It  was  in  the  early  cases 
held  that  her  conveyance  was  invalid  if  not  executed  ac- 
cording to  the  provisions  of  the  statute,  and  that  her  title 
did  not  pass  if  the  certificate  of  acknowledgment  was 
defective  in  any  substantial  respect.^  In  one  case  that 
was  decided  after  the  adoption  of  the  code,  the  court  held, 
in  conformity  with  the  early  decisions,  that  the  certifi- 
cate of  acknowledgment  is  a  material  part  of  a  married 
woman's  deed,  and  essential  to  make  it  an  operative 
transfer  of  title.  Mr.  Justice  Morrison,  after  examining 
the  cases,  said,  in  delivering  the  opinion  of  the  court: 
"We  have  thus  seen  that  there  is  but  one  mode  by  which 
a  inarried  woman  can  convey  her  separate  estate,  and 
that  is  prescribed  by  statute.     All  the  cases  hold  that  the 

'  Central  Land  Company  v.  Laidley,  32  W.  Va.  134 ;  25  Am.  Rep.  St. 
797.  See,  al^o,  Hayden  v.  Moffatt,  74  Tex.  647;  15  Am.  St.  Rep.  866; 
Logan  V.  Gardner,  i:56  Pa.  St.  588;  20  Am.  St.  Rep.  939. 

»  Morrison  v.  Wilson,  13  Cal.  498;  73  Am.  Dec.  593;  Terry  v.  Ham- 
mond, 47  Cal.  32;  McLeran  v.  Benton,  43  Cal.  467 ;  Ewald  v.  Corbett,  32 
Cal.  493;  Pease  v.  Barbier,  10  Cal.  436;  Judson  v.  Porter,  53  Cal.  482. 
And  see  Seiover  v.  A.  H.  Com.  Co.,  7  Cal.  266;  Barrett  v.  Tewksbury,  9 
Cal.  13;  Salmon  v.  Wileon,  41  Cal.  595. 


§  549  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  744 

provisions  of  the  statute  must  be  substantially  complied 
with;  and  if  the  certificate  of  acknowledgment  is  insuffi- 
cient, the  conveyance  is  absolutely  void."  "^  But  in  a  later 
case,  the  court  held  that  a  different  rule  was  laid  down  in 
the  Civil  Code  from  what  formerly  prevailed.  The  ques- 
tion was  whether  a  defective  certificate  of  acknowledgment 
to  the  deed  of  a  married  woman  could  be  reformed  in  a 
court  of  equity.  In  determining  this  question  the  court 
considered  the  provisions  of  the  statute  relative  to  the 
acknowledgment  of  deeds  by  married  women.  It  was  de- 
cided that  it  was  necessary,  as  before,  for  a  married  woman 
to  achwivledge  the  execution  of  her  deed,  but  that  the  cer- 
tificate of  acknowledgment  was  no  part  of  the  conveyance. 
In  other  words,  her  deed  would  not  be  void  for  any  de- 
fect that  might  appear  in  the  certificate  of  acknowledg- 
ment, if  in  fact  she  had  properly  acknowledged  it.'^  Mr. 
Justice  McKee,  in  speaking  of  the  first  law  enacted  in  the 
State  concerning  the  conveyances  of  married  women, 
which  required  that  her  deed  should  be  executed  and 
acknowledged  by  her  husband,  and  certified  in  accordance 
with  the  statute,  said:  "Execution,  acknowledgment,  and 
certification  were,  therefore,  made  by  the  law  essentials 
of  the  conveyance  of  the  estate  of  a  married  woman;  and 
each  was  required  to  be  made  and  done  in  the  mode 
and  according  to  the  form  which  the  law  prescribed. 
Her  acknowledgment  had  to  be  made  to  an  officer,  quali- 
fied by  the  law  to  take  it,  to  whom  she  was  personally 
known  to  be  the  person  whose  name  was  subscribed  to 
the  conveyance,  as  a  party  thereto,  or  proved  to  be  such 
by  a  credible  witness;  and  upon  being  made  acquainted 
with  the  contents  of  the  instrument  subscribed  by  her, 
she  was  required  to  acknowle'dge,  on  an  examination 
separate  and  apart  from  and  without  the  hearing  of 
her  husband,  that  she  executed  the  conveyance  freely 
and  voluntarily,  without   fear  or  compulsion,  or  undue 

1  Leonis  v.  Lazzarovich,  55  Cal.  52,  59.    See  Mathews  v.  Davis,  102 
Cal.  202. 

»  Wedel  V.  Herman,  59  Cal.  507. 


745       ACKNOWLEDGMENT  BY  MARRIED  WOMEN.     §  549 

influence  of  her  husband,  and  that  she  did  not  wish  to 
retract  the  execution  of  the  same.  In  construing  the 
provisions  of  the  statute,  the  supreme  court  regarded 
a  married  woman  quoad  her  separate  property  as  a 
fevie  sole,  with  power  to  dispose  of  her  property, 
whether  real  or  personal,  in  the  mode  prescribed, 
but  in  no  other.  Accordingly,  they  held  that  not 
only  signing  and  acknowledgment  by  her  of  the  execu- 
tion of  a  conveyance,  according  to  the  statute,  before  an 
officer  qualified  by  law  to  take  the  acknowledgment,  but  the 
certification  by  the  officer  of  the  execution  and  acknowl- 
edgment of  the  conveyance  were  each  and  all  necessary 
parts  of  the  conveyance^  and  that  any  instrument  in 
writing  purporting  to  convey  her  real  or  personal  separate 
property,  which  was  not  acknowledged  and  certified,  or 
which  was  defectively  acknowledged  and  certified,  was 
absolutely  void — a  piece  of  blank  paper,  which  could  not 
be  corrected  or  reformed,  in  any  particular,  in  a  court  of 
chancery,  *  because,'  says  the  court,  '  her  consent  to  con- 
tracts must  be  perfectly  free.  She  can  make  no  contract 
to  bind  her,  except  in  the  manner  prescribed  by  law. 
The  provisions  of  the  statute  must  be  strictly  pursued.'"^ 
The  learned  justice  then  referred  to  certain  sections  of 
the  Civil  Code,  bearing  upon  the  conveyances  of  married 
women,  and  proceeded  to  say:  "  But  the  legal  effect  of 
these  forms  of  procedure  was  changed.  Joint  execution 
of  a  conveyance  by  the  husband  and  wife,  and  a  separate 
acknowledgment  by  each,  according  to  the  forms  pre- 
scribed, were  still  required  for  the  disposition  of  her  es- 
tate. But  execution,  acknowledgment,  and  certification 
of  acknowledgment  were  no  longer  necessary  to  the 
validity  of  her  conveyance.  It  was  sufficient  to  pass  her 
estate  if  she  executed  and  acknowledged  a  conveyance 
thereof,  according  to  the  requirements  of  the  Civil  Code.* 
When  thus  executed  and  acknowledged,  her  conveyance 

'  Citing  Barrett  v.  Tewkebury,  9  Cal.  14;  Selover  v.  Eussian  Ameri- 
can Com.  Co.,  7  Cal.  267. 
»  Civil  Code,  §  1093. 


§  549     ACKNOWLEDGMENT  BY  MARRIED  WOMEN.      746 

had  the  same  effect  as  the  deed  of  a  feme  sole}  There- 
fore, the  certificate  of  acknowledgment  is  not  an  essential 
part  of  her  conveyance.  That,  under  the  codes,  is  re- 
garded simply  as  record  proof  of  the  fact  of  acknowledg- 
ment. Where  acknowledgment  has  been  made,  according 
to  law,  before  an  officer  qualified  by  law  to  take  it,  the 
party  making  it  has  done  all  that  the  law  requires  to 
make  the  instrument  her  act  and  deed.  Her  deed  thus 
executed  and  acknowledged  may  be  valid,  though  defect- 
ively certified.  The  embodiment  of  the  fact  of  acknowl- 
edgment, in  the  form  of  the  certificate  prescribed  by  law, 
devolves  upon  the  officer  who  has  taken  the  proof  of  it, 
and  not  ui)on  the  party  making  it."  The  court  held 
under  a  section  of  the  Civil  Code,  which  provides  that 
when  an  instrument  has  been  properly  acknowledged,  but 
defectively  certified,  the  court  may  correct  the  certificate, 
that  the  certificate  of  acknowledgment  of  a  married 
woman  was  within  the  purview  of  the  statute;  and  that 
a  defect  in  her  certificate  of  acknowledgment  might,  by  a 
judgment,    be    rectified.^     But  a   defective    certificate   of 

1  Civil  Code,  §  1187. 

^  See  Civil  Code,  §  1202.  The  court  said  that  the  case  of  Leonis  v. 
Lazzarovich,  55  Cal.  52,  was  not  in  conflict  with  the  views  expressed, 
and  observed:  "Every  judgment  of  every  court  must,  of  course,  be  con- 
sidered with  reference  to  the  facts  wliich  were  before  the  court  for  de- 
termination. In  the  facts  and  the  principles  of  law  applicable  to  them, 
the  two  cases  are  entirely  dissimilar.  In  that  case  the  object  of  the  ac- 
tion was  to  control  an  alleged  mistake  in  the  deed  of  a  married  woman. 
The  deed  had  been  duly  executed,  acknowledged,  and  the  court  held,  that 
it  could  not  be  reformed  by  adding  to  it  any  other  property  than  what 
was  described  in  it,  because  a  married  woman  cannot  be  divested  of  her 
real  estate,  except  in  the  mode  prescribed  by  the  codes.  Therefore,  the 
judgment  of  the  lower  court,  directing  a  married  worn :ui  dele  daiit,  lo 
execute  and  acknowledge  within  a  certain  time,  another  deed  convey- 
ing other  lands  than  those  described  in  her  original  deed,  was  adjudged 
erroneous.  Certain  expressions  in  the  opinion  as  to  the  power  of  the 
court  to  correct  a  defective  certificate  of  acknowledgment  to  such  a  deed, 
though  sustained  by  authorities  of  other  States,  and  by  the  decisions  in 
our  own  State  prior  to  the  adoption  of  the  codes,  went  beyond  the  facts 
of  the  case,  and  are  not  applicable  to  the  facts  of  this  case;  for  in  this, 
the  execution  and  acknowledgment  of  the  conveyance  were  complete 
but  the  certificate  of  the  officer  was  defective."  And  see  Durfee  v. 
Garvey,  65  Cal.  406. 


747       ACKNOWLEDGMENT  BY  MARRIED  WOMEN.     §  550 

acknowledgment  of  the  deed  of  a  married  woman  cannot 
be  corrected  under  this  provision  of  the  code,  when  the 
defective  certificate  was  made  prior  to  the  enactment  of 
the  code.^ 

§  650.     Comments. — In  the  case  of  Wedel  v.  Herman,^ 
the  question  before  the  court  was  whether  a  defective  cer- 
tificate of  acknowledgment  of  a  married  woman  could  be 
corrected.     The  right  to  have  the  defect    rectified    was 
based    upon    a  provision    of   the    code,    which   declares: 
"When   the  acknowledgment  or  proof  of  the  execution 
of  an  instrument  is  properly  made,  but  defectively  certified, 
any  party  interested  may  have  an  action  in  the  district 
court  to  obtain  a  judgment  correcting  the   certificate."^ 
The  court  held  that  a  certificate  of  acknowledo-raent  of  a 
married  woman  might  be  corrected  under  this  section.     It, 
however,  conceded  that  an  acknowledgment  was  still  nec- 
essary to  the  validity  of  a  married  woman's  conveyance, 
but   decided    that  a  proper  certification    of   it    was    not. 
Some  interesting  questions  may  arise  under  this  view  of 
the  law.     Suppose  that  a  deed  of  a  married  woman  had 
been  in  fact  properly  acknowledged,  but  the  acknowledg- 
ment is  defectively  certified,  and  it  becomes  necessar}'  to 
introduce  this  deed  in  evidence  as  one  of  the  links  in  the 
chain  of  title.     Presumptively  the  certificate    states  the 
truth.     If  the  statement  of  any  material  fact  is  omitted, 
the  presumption  is  that  it  did  not  occur.     If,  for  instance, 
the  deed  was  acknowledged  by  a  married  woman  as  though 
she  were  a  feme  sole,  it  would  convey  no  title,  as  recently 
decided  by  the  supreme  court  of  that  State.''     Now,  in  the 
case  supposed,  could  the  party  seeking  to  introduce  the 
defectively  certified  deed  in  evidence   prove,  in  a  case  in 
which  the  married  woman  was  not  a  party,  for  the  pur- 
pose of  rendering  it  admissible,  that  it  was  properly  ac- 
knowledged?    It  may  be  phiusibly  urged  that  he  could. 
That  the  deed  as  between   the  parties  and  all  the  world, 
except  bona  fide  purchasers  in  good  faith,  without  notice, 

'  Judson  V.  Porler,  53  Cal.  482.  »  Civil  Code  Cal.  §  1202. 

'  5.)  Cal.  507.  *  Dui  Ice  v.  Garvey,  65  Cal.  406, 


§  551  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  748 

is  valid,  is  tiie  conclusion  reached  in  Wedel  v.  Herman, 
This  being  assumed,  it  may  be  said  that  the  certificate  of 
acknowledgment  is  to  be  treated  simply  as  one  mode  of 
proof  of  its  execution,  and  that  if  the  certificate  is  defect- 
ive, its  execution  may  be  proved  by  other  means.  But  it 
is  conceived  that  this  cannot  be  done.  If  such  a  practice 
were  permitted,  aside  from  other  objections  to  it,  the  title 
of  a  married  woman  might  be  divested  without  her  con- 
sent in  a  case  to  which  she  was  not  a  party.  Under  the 
section  quoted,  her  deed  would  be  inadmissible  in  evi- 
dence, in  our  opinion,  until  the  defective  certificate  had 
been  corrected  by  the  judgment  of  a  competent  court.^ 

§  551.  Separate  examination  of  wife. — In  most  of 
the  States,  the  statute  relating  to  acknowledgments  re- 
quires that  there  shall  be  a  private  and  separate  examina- 
tion of  the  wife.  The  general  rule  under  these  statutes, 
is  that  the  certificate  of  acknowledgment  must  show  the 
fact  of  such  private  examination,  or  it  will  be  void.^     Ac- 

^  In  Bank  of  Healdsburg  v.  Bailhache,  65  Cal.  ?.27,  it  was  said,  argu- 
endo: "  The  contention  of  the  plaintiff  tlaat  tlie  deed  was  delivered  when 
Mrs.  Bailhache  signed  it  in  the  presence  of  the  notary,  and  silently 
passed  it  to  Bloom,  cannot  be  successfully  maintained ;  for  although 
signed,  the  deed  was  not  acknowledged  and  certified  according  to  law; 
and  until  the  deed  of  a  married  woman  is  acknowledged  and  certified 
according  to  the  formalities  prescribed  by  sections  1186  and  1191  of  the 
Civil  Code,  it  has  no  validity,  and  is  not  in  a  condition  to  be  delivered 
or  accepted." 

^  Kendall  v.  Miller,  9  Cal.  591;  McMullen  r.  Eagan,  21  W.  Va.  233; 
Selover  V.  Russian  Am.  Com.  Co.,  7  Cal.  266;  Sibley  v.  Johnson,  1  Mich. 
380;  Jourdan  v.  Jourdan,  9  Serg.  &  R.  268;  11  Am.  Dec.  724;  McLeran 
V.  Benton,  43  Cal.  467 ;  Laidley  v.  Knight,  23  W.  Va.  735 ;  Pratt  v.  Bat- 
tels, 28  Vt.  685 ;  Graham  v.  Long,  65  Pa.  St.  386 ;  Watson  v.  Michael,  21 
W.  Va.  568;  Steele  v.  Lewis,  1  Mon.  48;  Clayton  v.  Rose,  87  N.  C.  106; 
Phillips  V.  Green,  3  Marsh.  A.  K.  7;  13  Am.  Dec.  124;  Harty  v.  Ladd,  3 
Or.  353;  Bagby  i;.  Emerson,  79  Mo.  139;  Clayton  v.  Rose,  87  N.  0.  106; 
Garrett  v.  Moss,  22  111.  363;  Tate  v.  Stoolzfoos,  16  Serg.  &  R.  35;  16  Am. 
Dec.  546;  Edgertonv.  Jones,  10  Minn.  427;  Marsh  v.  Mitchell,  26  N.  J. 
Eq.  497;  Armstrong  v.  Russ,  20  N.  J.  Eq.  109;  Lyon  v.  Kain,  36  111.  362; 
Rice  V.  Peacock,  37  Tex.  392;  Stillwell  v.  Adams,  29  Ark.  346;  Shryrock 
V.  Cannon,  39  Ark.  434;  Hartley  v.  Ferrell,  9  Fla.  374;  Muir  v.  Galloway, 
61  Cal.  498;  Linn  v.  Patton,  10  W.Va.  187;  Laughlin  v.  Fream,  14  W.Va. 
322;  Krieger  v.  Crocker,  118  Mo.  531;  Wamljole  v.  Foote,  2  Dak.  1 ;  Fir^t 
Kat.  Bank  v.  Paul,  75  Va.  594;  -iO  Am.  Rep.   740;    Bryan  v.  Stump,  8 


749  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  561 

cordingly,  where  a  certificate  of  a  Diarried  woman  recited 
that  she  appeared  before  the  officer  "and  acknowledged 
herself  party  to  the  annexed  deed  of  trust,  and  being 
examined  and  apart  from  her  husband,  acknowledged 
that  she  signed,  sealed,  and  delivered  the  same  for  the 
purposes  and  consideration  therein  expressed,  and  that  she 
wished  not  to  retract  it,"  the  certificate  was  held  defective 
and  worthless,  because  it  failed  to  show  that  she  was  ex- 
amined separate  and  apart  from  her  husband,  or  the  per- 
son by  whom  she  was  examined.  All  the  recitals  contained 
in  the  instrument  may  have  been  true,  and  yet  they  were 
not  inconsistent  with  the  idea  that  she  might  have  never 
acknowledged  to  the  officer  her  willingness  to  sign  the 
instrument.^     So  in  West  Virginia,  the  certificate  of  the 

Gratt.  241;  56  Am.  Dec.  139;  Nippel  v.  Hammond,  4  Col.  211;  Trustees 
V.  Davidson,  65  111.  124 ;  Lyon  v.  Kain,  36  111.  362 ;  Hayes  v.  Frey,  54  Wis. 
503 ;  McCandless  v.  Engle,  51  Pa.  St.  309 ;  Graham  v.  Long,  65  Pa.  St. 
383.     See  EUett  v.  Richardson,  9  Baxt.  (Tenn.)  293. 

1  Rice  V.  Peacock,  37  Tex.  392.  In  Jourdan  v.  Jourdan,  9  Serg.  &  R. 
268,  11  Am.  Dec.  724,  the  opinion  of  the  court  was  delivered  by  Tilghman, 
C.  J.,  who  said:  "This  deed  was  acknowledged  by  both  the  grantors 
before  James  M.  Gibbons,  a  justice  of  the  peace  of  Chester  county,  as 
appeared  by  his  certificate;  but  it  did  not  appear  that  the  wife  was 
examined  separate  and  apart  from  her  husband,  and  that  was  the  reason 
of  the  rejection.  As  to  the  acknowledgment  of  deeds  by  married  women, 
the  principle  now  firmly  established  is,  that  the  requisites  of  the  act  of 
asseml^ly  by  which  the  mode  of  conveyance  hy  femes  covert  is  prescribed 
must  appear  to  have  been  substantially  complied  with  on  the  face  of  the 
certificate  made  by  the  magistrate  by  whom  the  acknowledgment  was 
taken:  Watsnn  v.  Bailey  is  the  leading  case,  1  Binn.  470;  2  Am.  Dec. 
462;  since  which  have  been  the  cases  of  Mclntire  v.  Ward,  5  Binn.  296; 
6  Am. Dec.  417;  Slialler  v.  Brand,  6  Binn.  435;  6  Am.  Dec.  482;  Evans 
V.  Commonwealth,  4  Serg.  &  R.  232 ;  8  Am.  Dec.  711 ;  Watson  v.  Mercer,  6 
Serg.  &  R.  49;  9  Am.  Dec.  411,  and  Hopkins  v.  Birchall,  6  Serg.  &  R. 
143.  And  in  conformity  with  this  principle,  the  counsel  for  the  defend- 
ant has  contended  that  it  substantially  appears  the  wife  was  examined 
separate  and  apart  from  her  husband,  because  it  is  certified  by  the  mag- 
istrate that  she  voluntarily  consented,  which  she  could  not  do  if  her 
husband  were  present,  because  then  it  would  be  presumed  that  she  was 
under  coercion.  This  argument  is  too  refined.  A  separate  examination 
is  essential,  and  ought  sufficiently  to  appear.  In  the  present  instance, 
the  magistrate  certifies  that  Ww.  feme  voluntarily  consented.  We  are 
to  understand  by  that,  that  being  asked  by  the  magistrate  whether  she 
made  her  acknowledgment  of  her  own  free  will,  without  any  coercion  or 
compulsion  of  her  husband,  she  answered  in  the  aflirmative.    Isothiug 


§  551  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  750 

notary  stated  that  "personally  appeared  before  me, 
the  undersigned  notary  public  for  said  county,  Abby 
Tream,  the  wife  of  said  J.  Treara,  whose  names  are 
signed  to  the  foregoing  assignment,  and  being  by  me, 
in  accordance  with  the  law  in  that  case,  made  and  pro- 
vided, and  having  the  said  writing  fully  explained  to  her, 
she  acknowledged  the  same  to  be  her  act  and  deed  for 
the  purposes  therein  specified  and  set  forth,  and  that  she 
wished  not  to  retract  it."  The  certificate,  because  it  did 
not  show  that  she  was  examined  privil}^  and  apart  from 
her  husband,  and   her  willingness  to  execute   the   same, 

more  can  be  fairly  implied.  Whether  this  examination  was  in  the  pres- 
ence of  her  husband  or  not  does  not  appear;  nor  is  there  any  ground  for 
inference  on  that  point.  It  might  in  truth  be  that  she  freely  consented 
though  her  husband  was  present.  But  that  will  not  satisfy  the  law. 
Examine  the  woman  how  you  will,  it  is  impossible  to  ascertain  with  cer- 
tainty whether  she  gives  her  free  consent;  her  word  must  be  taken  for 
that.  She  may,  in  fact,  be  under  terror^  though  she  be  examined  in  the 
absence  of  her  husband.  But  there  is  a  better  chance  for  her  speaking 
her  real  sentiments  in  his  absence  than  in  his  presence.  And  it  is  diffi- 
cult for  the  law  to  protect  her  further  than  by  giving  her  an  opportunity 
of  disclosing  her  mind  to  the  magistrate,  out  of  the  presence  of  her  hus- 
band. The  act,  therefore  directs  this  examination  of  the  wife  to  be  sep- 
arate and  apart  from  her  husband ;  and  in  this  the  magistrate  has  no 
discretion.  He  has  no  right  to  say  that  the  consent  was  voluntary, 
unless  the  husband  and  wife  were  separate,  and  that  they  were  separate 
must  appear  on  the  face  of  the  certificate,  and  not  otherwise.  I  am, 
therefore,  of  opinion  that  the  certificate  of  acknowledgment  was  defective. 
But  it  was  attempted  to  supply  this  defect  by  the  parol  evidence  of  the 
magistrate,  before  whom  the  acknowled^iin'nt  was  made.  This  evidence 
was  also  rejected,  and,  in  my  opinion,  with  great  propriety.  That  point 
was  expressly  decided  in  the  case  of  Watson  v.  Bailey,  1  Binn.  470;  2 
Am.  Dec.  462.  In  that  case,  the  certificate  of  the  magistrate  was  defect- 
ive, and  in  order  to  supply  the  defect,  parol  evidence  was  offered  and 
refused  by  the  court.  There  would  be  no  c^'rtainty  in  titles  if  this  kind 
of  evidence  were  permitted.  The  deed  in  question  was  acknowledged  the 
31st  of  December,  1802,  and  after  tlie  lapse  of  twenty  years  the  magis- 
trate is  called  upon  to  declare  what  took  place  at  the  time  of  the  ac- 
knowledgment. If  it  were  a  new  point,  I  should  say  that  the  evidence 
ought  not  to  be  admitted.  The  law  directs  the  magistrate  to  make  his 
certificate  in  writing,  and  he  has  made  it.  To  that  the  world  is  to  look, 
and  to  nothing  else.  But  the  point  is  not  new.  The  decision  in  Watson 
V.  Bailey  has  been  recognized  in  other  cases.  There  can  be  no  hesitation, 
therefore,  in  saying  that  in  the  present  instance,  the  parol  evidence  was 
inadmissible," 


751  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  552 

was  held  fatally  defective.*  Speaking  of  a  certificate  oi 
acknowledgment,  Mr.  Justice  Breese  said:  "It  fails  to 
state  that  the  ofhcer  acquainted  her  with,  and  explained 
to  her,  its  contents,  or  that  he  examined  her  separate  and 
apart  from  her  husband,  or  that  she  acknowledged  that 
she  executed  it  voluntarily  and  freely,  and  without  the 
compulsion  of  her  husband.  Each  of  these  things  is  an 
essential  prerequisite  to  pass  the  title  of  a  married 
woman's  land,  and  cannot  be  omitted.  The  statute  re- 
quires them,  and,  until  they  are  performed,  the  deed  as  to 
a  feme  covert  is  inoperative  and  void.  It  is  by  the  au- 
thority of  the  statute  alone  that  she  can  convey  her  real 
estate,  and  a  compliance  with  it  is  essential  to  give  to  it 
validity."'^  Where  the  certificate  of  acknowledgment 
shows  that  the  privy  examination  of  a  married  woman 
was  not  taken  as  required  by  statute,  she  is,  where  the 
right  to  dower  exists,  entitled  to  recover,  on  the  death  of 
her  husband,  her  dower  in  the  real  estate  conveyed  in  the 
deed.^  The  acknowledgment  should  be  made  after  the 
examination  and  explanation.  It  is  not  sufficient  that 
she  acknowledged  the  deed  with  her  husband,  and  it  was 
subsequently  fully  explained  to  her,  and  she  declared  that 
she  had  executed  it  voluntarily  and  did  not  desire  to  re- 
tract it.* 

§  552.     Examination  is  private  if  husband  is  excluded. 

Some    controversy    has    arisen    over   what    is    meant    by 

*  Laughlin  v.  Tream,  14  W.  Va.  322.  See,  also,  Grove  v.  Zum])ro,  14 
Gratt.  501;  Linn  v.  Patton,  10  VV.  Va.  198;  Laidley  i;.  Knight,  23  W.  Va. 
735;  Bartlett  v.  Fleming,  3  \V.  Va.  165;  Hairston  v.  Randolpli,  12  Leigh, 
445 ;  Leftwich  v.  Neal,  7  W.  Va.  569 ;  Harvey  v.  Peck,  1  Munf.  518. 

»  Garrett  v.  Moss,  22  III.  363,  364 ;  Elliot  v.  Peirsol,  1  Peters,  328 ; 
Board  of  Trustees  v.  Davison,  65  111.  124;  Healy  v.  Rowan,  5  Gratt.  414; 
52  Am.  Dec.  94;  Stillwell  v.  Adams,  29  Ark.  346;  Jordan  v.  Corey,  2  Ind. 
385;  52  Am.  Dec.  516;  McOann  v.  Edwards,  6  Mon.  B.  208:  Dewey  «. 
Campau,  4  Mich.  565;  Russ  v.  Wingate,  30  Miss.  440;  Den  ex.  dem. 
Etheridge  v.  Aalibee,  9  Ired.  353;  Willis  v.  Gattman,  53  Miss.  721;  War- 
ren D.  Brown,  25  Miss.  66;  57  Am.  Dec.  191. 

»  First  Nat.  Bank  v.  Paul,  75  Va.  594 ;  40  Am.  Rep.  740. 

*  McMuUen  v.  Eagan,  21  VV.  Va.  233;  Watson  v.  Michael,  21  W.  Va. 
568. 


§  552  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  752 

a  private  examination.     It   has  been  contended  that   a 

Crivate  examination  signifies  that  not  only  the  husband 
ut  all  other  persons  should  be  excluded  when  this  exam- 
ination occurs.  And  in  one  case  it  was  decided  that  the 
examination  would  be  vitiated,  if  any  other  person  than 
the  officer  and  the  wife  were  present,  for  such  examina- 
tion, it  was  said,  would  not  be  private.^  But  shortly  af- 
ter, in  the  same  court,  this  question  received  the  most 
careful  examination  and  consideration,  and  this  case,  af- 
ter are-examination,  was  overruled,  the  court  observing: 
"  It  appears  to  be  almost  universally  held  that  a  literal 
conformity  to  the  words  of  the  statute  in  such  cases  is 
not  required,  and  that  if  the  requisites  are  substantially 
complied  with,  it  is  sufficient.  What,  then,  is  a  substan- 
tial compliance  with  the  statute  ?  In  order  to  settle  this, 
we  must  consider  what  particular  evil  was  intended  to 
be  prevented,  and  what  object  was  intended  to  be 
promoted.  There  is  no  difficulty  in  declaring  that  the 
object  intended  to  be  promoted  was  the  free,  voluntary, 
and  unconstrained  act  of  the  wife;  and  that  the  evil  in- 
tended to  be  obviated  was  the  undue  influence  of  the 
husband.  It  was  presumed  that  his  presence  imposed 
constraint  upon  her,  and  that  influence  was  intended  to  be 
removed  by  placing  her  out  of  its  immediate  operation,  and 
where  she  would  be  presumed  to  act  'freely,  voluntarily, 
and  without  any  fear,  threats,  or  compulsion  of  her  hus- 
band.' The  undue  influence  of  others  does  not  appear 
to  have  been  contemplated,  nor  does  it  seem  to  have  been 
in  the  mind  of  the  legislature  that  the  influence  of  the 
husband  might  be  excited  through  other  persons  present 
at  the  examination;  for  had  this    been  the  case,  the  pro- 

1  Warren  v.  Brown,  25  Miss.  66,  57  Am.  Dec.  191.  "The  acknowledg- 
ment made  by  the  com|)lainant,"  said  the  court,  "  is  not  in  accordance 
with  the  statute,  but  is  defective  in  an  essential  particular.  It  is  true 
that  it  states  that  it  was  made  'separate  and  apart  from  the  husband,' 
but  it  does  not  purport  to  have  been  made  on  'a  private  examination.' 
This  is  as  essential  a  requisition  of  the  statute  as  an  examination  'apart 
from  the  husband.'  For  it  will  be  readily  seen  that  the  objects  of  the 
statute  miuht  be  as  easily  defeated,  if  the  examination  was  not  made  in 
private,  as  if  made  in  the  presence  of  the  husband." 


753      ACKNOWLEDGMENT  BY  MARRIED  WOMEN.     §  552 

vision  doubtless  would  have  been  'apart  from  her  hus- 
band '  and  all  other  persons.  Great  force  is  given  to 
this  view,  when  we  refer  to  what  she  is  required  by  the 
statute  to  acknowledge,  and  which  has  reference  entirely 
to  her  husband,  namely,  that  she  acted  '  without  fear, 
threats,  or  compulsion  of  her  husband.'  But  it  is  urged 
that  the  terms  of  the  statute  require  that  it  should  be 
shown  that  her  examination  was  both  private  and  apart 
from  her  husband;  that  these  terms  were  employed  ex 
industria;  that  they  are  significant  and  must  be  complied 
with;  and  that  the  statute  must  be  construed  so  as  to  give 
effect  to  all  the  words  used.  But  words  are  to  be  con- 
strued with  reference  to  the  whole  statute,  its  general 
scope  and  object,  and  the  particular  evil  intended  to  be 
provided  against;  and  the  terms  used  must  yield  to  the 
obvious  intention  to  be  collected  from  the  whole  act.  We 
have  above  adverted  to  the  evil  intended  to  be  prevented, 
and  the  reasons  of  this  statute.  Keeping  these  objects  in 
view,  what,  then,  are  we  to  understand  by  the  words  'pri- 
vate examination'?  If  it  was  intended  that  it  should  be 
out  of  the  presence  of  all  persons  whatever,  the  words 
*  apart  from  her  husband'  become  useless,  for  that  was 
already  embraced  by  the  words  'private  examination' 
under  the  construction  contended  for.  Suppose  the  words 
'apart  from  her  husband'  were  omitted,  can  we  attach 
any  definite  and  practical  understanding  to  the  words 
'private  examination'?  Do  they  necessarily  exclude  the 
husband's  presence,  and  if  they  do  not,  as  is  most  cer- 
tainly true,  do  they  necessarily  exclude  the  presence  of 
all  other  persons?  If  not,  what  number  and  character  of 
persons  may  be  present,  and  still  the  examination  be 
'private'?  These  considerations  present  great  difficulties 
in  deducing  any  practical  rule  from  the  statute  upon  the 
construction  contended  for.  And  these  difficulties  can 
only  be  avoided  by  applying  the  reason  of  the  statute  in 
its  exposition.  Olierwise  it  is  vague  and  impracticable. 
That  reason,  manifestly,  has  reference  only  to  the  pres- 
ence, and  the  presumed  influence  of  the  husband.     When, 

Ukjsijs,  Vol.  I.—  18 


§  553  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  754 

therefore,  the  statute  provides  that  the- wife  shall  make 
the  acknowledgment  on  a 'private  examination,'  'apart 
from  her  husband,'  the  latter  clause  was  intended  merely 
to  explain  and  define  what  was  meant  by  the  words  'pri- 
vate examination,'  which  were  too  general  and  uncertain 
for  any  practical  purpose.  The  substantial  thing  required 
to  be  done  by  her  was  to  declare  that  she  acted  '  freely, 
without  any  fear,  threats,  or  compulsion  of  her  husband,' 
and  this  out  of  his  presence,  and  apart  from  all  liability  to 
his  constraint."  ^  The  rule  is  now  generally  understood  as 
requiring  that  the  husband  is  the  only  person  who  need 
be  excluded  from  the  examination.  The  presence  of  other 
persons  does  not  make  the  examination  less  private.'' 

§  553.  Comments. — It  has  been  generally  assumed 
that  all  that  the  statute  requires  is,  that  the  examination 
shall  be  separate  and  apart  from  the  husband,  and  the 
very  infrequency  with  which  the  question  has  been  raised 
shows  that  this  has  been  the  practical  construction  placed 
upon  the  statute.  The  word  "private"  is  qualified  by 
the  words  "apart  from  her  husband."  If  this  construc- 
tion were  not  to  be  adopted,  it  would  be  useless  to  employ 
the  words  "apart  from  her  husband," as  the  term  "pri- 
vate," in  excluding  all,  would  necessarily  exclude  the  hus- 
band among  the  rest.  That  an  influence  of  coercion 
might  be  exerted  by  a  third  party  is  not  contemplated  by 
the  statute,  the  design  of  which  is  to  secure  the  wife  from 
the  control  or  interference  of  her  husband  only.  In  fact, 
to  the  objection  that  an  improper  influence  might  be  ex- 
erted by  a  third  party,  if  allowed  to  be  present,  it  may  be 
answered  that  the  examining  ofiicer  may  as  readily  be 

1  Love  V.  Taylor,  26  Miss.  567,  575,  per  Handy,  J.  If  there  is  a  defect 
in  the  certificate  of  acknowledgment,  a  proper  acknowledgment  made 
after  a  conveyance  to  a  second  grantee  will  not  cure  the  defect :  Durfee 
t;.  Gawey,  GS'Cal.  406 ;  Enterprise  Co.  v.  Sheedy,  103  Pa.  St.  492;  49  Am. 
Rep.  130. 

=»  Dennis  v.  Tarpenny,  20  Barb.  371 ;  Thayer  v.  Torry,  37  N.  J.  L.  339. 
And  see  Den  v.  Geiger,  4  Halst.  233 ;  Nanty  v.  Bailey,  3  Dana,  111.  See, 
also,  Kenneday  v.  Price,  57  Miss.  771;  Coombes  v.  Thomas,  57  Tex.  321; 
Belo  V.  Mayes,  79  Mo.  67. 


755      ACKNOWLEDGMENT  BY  MARRIED  WOMEN.       §§  554,  555 

supposed  to  use  intimidation.  The  law  considers  the 
wife  sufficiently  protected  if  she  is  examined  where  her 
husband  can  exercise  no  control  over  her  will. 

§  554.  Husband  must  not  be  able  to  hear  examina- 
tion.— As  the  whole  law  relating  to  the  acknowledgments 
of  married  women  depends  upon  the  supposition  that  the 
husband  will  unduly  influence  the  wife,  it  follows  that  to 
make  the  examination  the  private  one  intended  by  stat- 
ute, she  must  be  free  from  all  visible  compulsion  on  his 
part.  The  acknowledgment  must  be  taken  out  of  his  pres- 
ence, where  he  cannot  see  or  hear  any  indication  of 
unwillingness  which  she  may  manifest  in  executing  or 
acknowledging  the  instrument.  If  this  be  not  done,  she 
is  not  afforded  an  opportunity  to  escape  the  coercion 
again-st  which  the  law  attempts  to  guard  her.^  And 
where  a  married  woman  objects  to  executing  a  deed,  and 
her  husband  then  speaks  to  her  in  threatening  and  abusive 
language,  though  the  officer  is  not  present,  and  immedi- 
ately thereafter  in  her  husband's  presence  she  acknowl- 
edges the  conveyance  to  be  her  voluntary  act,  it  is  held 
that  the  presence  of  her  husband  is  coercive.  In  such  a 
case  the  instrument  is  ineffectual  to  pass  her  title,  as  the 
acknowledgment  is  not  taken  apart  from  her  husband.^ 
The  husband  should  be  so  far  away  that  he  cannot  com- 
municate to  the  wife  by  word,  look,  or  motion.^ 

§  555.  Construction  of  particular  certificates. — Where 
a  statute  of  Maryland  required  that  a  married  woman 

^  McCandless  v.  Engle,  51  Pa.  St.  309. 

*  Edgerton  v.  Jones,  10  Minn.  427.  "Whatever  other  or  further  con- 
struction," said  the  court,  "  it  may  be  necessary  in  a  proper  case  to  put 
upiin  the  statute,  it  is  clear  that  the  object  was  to  secure  to  the  wife  free- 
dom of  action,  especially  from  the  influence  of  her  husband,  in  execut- 
ing deeds  of  real  property.  We  are  clear  that  in  this  case  his  presence 
under  the  circumstances  was  not  permitted  by  the  statute.  It  was  a 
coercive  presence." 

*  Belo  V.  Mayes,  79  Mo.  67.  A  command  of  the  husband  may  not 
amount  to  duress :  Gabbey  v.  Forgeus,  38  Kan.  62.  See,  also,  Gardner  v- 
Case,  111  Ind.  494;  Green  v.  Scranage,  19  Iowa,  461;  87  Am.  Dec.  447; 
Carpenter  v.  Carpenter,  30  Kan.  712;  46  Am.  Rep.  108. 


§  555  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  756 

should  be  examined  "out  of  the  presence"  of  her  hus- 
band, it  was  held   by  the  Supreme  Court  of  the  United 
States  that  a  certificate  that  she  was  "privately  examined 
apart  from  and  out  of  the  hearing  of  her  husband/'  was 
a  sufficient  compliance  with  the  statute.     "Now,  although 
the  words  'out  of  the  presence'  are  not  used  here,"  said 
Mr.  Justice  Miller,  "we  are  of  opinion    that  the  words 
which  are  used    show  necessarily  and  conclusively  that 
the  examination  was  had  out  of  the  presence  of  the  hus- 
band.   In  the  first  place,  it  was  had  privately.    As  the  object 
of  the  statute  was  not  to  provide  for  strict  privacy  from 
all  persons,  but  only  privacy  from  the  husband,  it  is  to 
be  supposed  that  it  was  in  this  sense  the  justices  used  the 
word.     It  is  also  stated  that  she  was  examined  apart  from 
her  husband.     This  expression  is  still  stronger,  and  can 
mean  nothing  less  than  that  the  husband  was  not  present 
when  she  was  examined;  and  to  make  it  still  clearer  that 
this  examination,  private  and  apart  from  her  husband, 
was  out  of  his  presence,  it  Is  further  certified  that  it  was 
out  of  his  hearing.     Some  decisions  of  the  Supreme  Court 
of  Maryland  have  been  cited  to  show  that  the  rule  there 
is  a  strict  one  as  to  the  agreement  between  the  certificate 
and  the  statute,  but  none  which  overturns  the  doctrine 
recognized  by  that  court,  as  it  has  been  by  all  others,  that 
equivalent  words,  or  words  which  convey  the  same  mean- 
ing, may  be  used  instead  of  those  to  be  found  in  the  stat- 
ute."^    In  Colorado,  the  statute  provides  that  the  officer 
taking  the  acknowledgment  of  a  married   woman   shall 
certify  "that  the  same  was  made  upon  examination  sep- 
arate and  apart  from,  and  out  of  the  presence  of  the  hus- 
band   of  such   woman;  that  the  contents,  meaning,  and 
effect  of  such  deed  were  by  him  fully  explained  to  her."^ 
The  certificate  declared  that  the  wife  "having  been  by  me 
examined  separate  and  apart,  and  out  of  hearing  of  her 
husband,   and   the   contents  and  meaning  of    said  trust 
deed  having  been  by  me  made  known,  and  fully  explained 
to  her,  acknowledged  that  she   had  fully  and  voluntarily 

»  Deery  v.  Cray,  5  Wall.  795,  807.         ^  Rev.  Stats.  Col.  p.  Ill,  §  17. 


757  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  555 

executed  the  same."  It  will  be  noticed  that  the  officer 
uses  the  words  "out  of  hearing,"  instead  of  those  in  the 
statute,  "out  of  the  presence,"  and  omits  the  word 
"effect"  contained  in  the  statute,  after  the  words  "  con- 
tents and  meaning."  But  it  was  held  that  the  certificate 
substantially  complied  with  the  law,  and  was  sufficient.^ 
Where  it  is  required  that  she  should  be  examined  "  privily 
and  apart  from  her  husband,"  a  certificate  that  the  com- 
missioner took  "the  private  examination,"  and  that  she 
acknowledged  that  "  she  executed  the  deed  without  any 
compulsion  from  her  husband,  or  any  other  person,"  is 
regarded  as  sufficient.^  A  certificate  of  acknowledgment 
after  reciting  the  appearance  of  the  wife  continued,  "  who, 
after  a  private  examination,  separate  and  apart  from  her 
said  husband,  acknowledges  that  she  signed,  sealed,  and 
delivered  the  foregoing  deed  as  her  voluntary  act,  freely 
and  for  the  purposes  therein  expressed,  without  any  fear, 
threat,  or  compulsion  of  her  said  husband."  To  this 
certificate  the  objection  was  made,  that  althougli  it  stated 
that  the  wife  ivas  examined  separately,  yet  it  did  not  state 
that  she  acknoiuledged  the  instrument  separately.    But  the 

^  Nippel  V.  Hammond,  4  Col.  211.  The  court,  per  Thatcher,  C.  J. 
said :  "  Is  the  omission  of  the  words  *  out  of  the  presence  of '  fatal  to 
the  acknowledgment?  There  must  be  a  substantial,  though  not  nec- 
essarily a  literal  compliance  with  the  statute.  If  the  substituted  words 
employed,  considered  in  connection  with  the  entire  acknowledgment,  do 
not  reasonably  import  that  Mrs.  Bohlscheid  was  examined  '  out  of  the 
presence'  of  her  husband,  the  acknowledgment  would  be  insufficient. 
Within  the  intent  of  tiie  section  just  quoted  the  words  '  separate  and 
apart  from'  evidently  include  in  their  meaning  '  out  of  the  presence.' 
The  section,  in  terms,  declares  that  the  married  woman  shall  acknowledge 
the  deed  'separate  and  apart  from  her  husband,'  omitting  the  words 
'out  of  the  presence.'  That  the  legislature  intended  by  this  language 
that  the  acknowledgment  should  be  taken  in  the  absence  of  the  hus- 
band, is  apparent  from  the  subsequent  part  of  the  section  which  directs 
that  the  officer  taking  such  acknowledgment  shall  certify  that  tlie  same 
was  made  upon  examination,  separate  and  apart  from,  and  out  of  the 
])re9ence  of,  the  husband,  liy  no  rational  construction  can  it  be  said 
that  wlien  a  husijand  is  in  the  presence  of  his  wife,  that  she  is  separate 
and  apart  from  him." 

*  bkinner  v.  Fletcher,  1  Ired.  313, 


§  556  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  758 

court  characterized    the  objection  as    hypercritical,  and 
held  the  certificate  sufficient.^ 

§  556.  Presumption  of  private  examination.  —  Un- 
der some  of  the  early  statutes,  all  that  the  officer  was  re- 
quired to  certify  was  the  fact  of  acknowledgment,  and 
although  he  was  compelled  to  examine  the  wife  separately 
and  apart  from  her  husband,  and  to  explain  to  her  the 
full  contents  of  the  deed,  yet  it  was  not  necessary  that 
these  facts  should  affirmatively  appear  from  his  certificate. 
Under  these  statutes,  it  would  be  presumed  that  he  did 
his  duty,  and  complied  with  these  requirements  of  the 
statute,  without  a  statement  that  he  did  so.^  In  Indiana, 
with  reference  to  the  statute  in  force,  when  the  acknowl-, 
edgment  was  made,  it  was  said:  "It  is  the  officer's  duty, 
by  this  statute,  before  he  takes  the  acknowledgment  of  a 
feme  covert,  to  examine  her  apart  from  her  husband,  and 
make  known  to  her  the  contents  of  the  deed;  and  if, 
upon  such  examination,  she  declares,  either  expressly  or 
in  language  implying  it,  that  she  had  executed  the  deed 
voluntarily,  etc.,  the  officer  must,  under  his  hand  and 
seal,  and  on  the  deed,  certify  the  same;  that  is,  he  must 
certify  that  such  declaration  or  ackowledgment  of  the 
voluntary  execution  of  the  deed  was  made  before  him. 
But  the  statute  does  not  require,  as  we  understand  it,  the 
certificate  to  show  anything  more  on  the  subject  than  the 
declaration  or  acknowledgment  of  the  wife  that  she  had 
voluntarily  executed  the  deed.  It  will  be  presumed,  the 
contrary  not  appearing,  that  the  officer  did  his  duty  as 

^  Kennedayr.  Price,  57  Miss.  771.  And  see  Bernard  v.  Elder,  50  Miss. 
336,  where  a  certificate  of  acknowledgment  omitting  ttie  words  "  as  her 
voluntary  act  and  deed,"  "freely,"  but  containing  the  words  "fear, 
threats,  or  compulsion  of  husband,"  was  held  sufficient.  See,  also, 
Pardun  v.  Dobesberger,  3  Ind.  389;  Webster's  Lessee  v.  Hall,  2  Har.  & 
McH.  19;  1  Am.  Dec.  370. 

»  Coleman  v.  Billings,  89  111.  183;  Hughes  v.  Lane,  11  111.  123;  50 
Am.  Dec.  436;  Russell  v.  Administrators  of  Whiteside,  4  Scam.  7; 
Jordan  V.  Corey,  2  Ind.  385;  52  Am.  Dec.  516;  Fleming  v.  Potter,  14 
Ind.  486;  Ruffner  v.  McLennan,  16  Ohio,  639.  And  see  Allen  v.  Rey- 
nolds, 4  Jones  &  S.  (36  N.  Y.  Sup.  Ct.)  297. 


759      ACKNOWLEDGMENT  BY  MARRIED  WOMEN.       §§  557,  558 

to  the  separate  examination  of  the  wife,  and  making  her 
acquainted  with  the  contents  of  the  deed.  It  is  the  ac- 
knowledgment only,  not  the  circumstances  under  which 
it  was  made,  that  is  required  to  be  certified."^ 

§  657.  Comments. — The  decisions  referred  to  in  the 
preceding  section  were  based  on  special  statutes,  which, 
in  the  opinion  of  the  court,  required  the  officer  to  certify 
nothing  more  than  the  mere  fact  of  acknowledgment,  and 
under  which  it  would  be  presumed  that  all  antecedent 
acts  had  been  duly  performed.  They  do  not,  therefore, 
impugn  the  general  rule  that  the  certificate  of  acknowl- 
edgment must  show  on  its  face,  either  by  using  the  words 
of  the  statute  or  other  equivalent  expressions,  every  act 
essential  to  its  validity.  Every  essential  act  that  is  not 
made  by  the  certificate  to  appear  will,  as  we  understand 
the  law,  be  presumed  not  to  have  occurred. 

§  558.  Identity  should  appear. — The  general  rule,  of 
course,  prevails  in  reference  to  the  certificates  of  married 
women,  that  it  should  appear  that  she  was  known  to  the 
officer  taking  the  acknowledgment.^  A  certificate  of  ac- 
knowledgment declared  that  the  husband  was  personally 
known  to  the  officer,  and  also  that  his  wife  appeared  and 
acknowledged  the  deed.  But  the  certificate  did  not  state 
that  she  was  personally  known  to  the  officer.  A  majority 
of  the  court  held  that  the  acknowledgment  was  insuffi- 
cient. "A  deed  cannot  be  said  to  be  acknowledged,"  said 
Mr.  Justice  Walker,  in  delivering  the  opinion  of  the 
court,  "until  it  appears  that  it  was  the  grantor  him- 
self, and  not  some  person  who  may  have  personated  him, 
who  was  before  the  officer  and  made  the  acknowledg- 
ment. This  provision  is  wise  and  salutary  in  its  oper- 
ation. If  no  such  requirement  existed,  forgeries  would 
be   easily    perpetrated,    and    it   would    be    hard    in    all 

1  Stevens  v.  Doe,  6  Blackf.  475,  476. 

»  Reynolds  v.  Kin^Hbury,  15  Iowa,  2.';8;  Gover.  Gather,  23  111.  6?.4;  76 
Am.  Dec.  711  ;  Lindley  v.  Smith,  46  111.  523.  But  see  Mount  v.  Ketter- 
eon,  6  Cold.  452. 


§  558  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  7G0 

cases,  and  impossible  in  many,  to  prove  the  fact.  Re- 
move this  safeguard,  and  titles  to  real  estate  would  be 
held  by  a  slender  and  brittle  tenure."^  Chief  Justice 
Breese,  however,  dissented  from  the  opinion  cf  the  ma- 
jority of  the  court,  and  said:  "I  think  the  statutory  form 
of  acknowledgment  has  been  substantially  complied  with, 
as  the  magistrate  certified  the  husband  was  personally 
known  to  him,  and  his  wife  appeared  and  acknowledged 
the  deed.  And  it  is  impossible  he  could  certify  she  was 
the  wife  if  he  did  not  personally  know  her.  The  former 
includes  the  latter,  and  makes  the  acknowledgment  a 
substantial  compliance  with  the  statute,  which  is  all  that 
is  necessary.  The  objection  is  very  technical,  and  defeats 
the  right."  ^  We  think  the  opinion  of  the  majority  of 
the  court  founded  on  the  soundest  reason.  It  is  true  there 
is  some  ground  for  the  assertion  that  the  objection  is 
technical.  But  so,  perhaps,  is  every  objection  that  a  cer- 
tificate of  acknowledgment  is  defective.  It  is  always 
dangerous  to  attempt  to  supply  material  matters  by  con- 
struction, and  the  rule  ought  not  to  be  carried  further 
than  is  necessary.  Where  the  certificate  omitted  tlie 
name  of   the  wife  altogether,  so  that   it  read;  "And  the 

I  Lindley  v.  Smith,  46  111.  523,  527. 

'  Lindley  v.  Smith,  sitpra.  In  that  case  the  certificate  was  in  the  fol- 
lowing form  :  "  State  of  Illinois,  Clark  County,  ss.  I,  William  C.  Whit- 
lock,  a  justice  of  the  peace  in  and  for  the  said  county,  in  the  State 
aforesaid,  do  hereby  certify  that  Joseph  Hollenbeck,  personally  known 
to  me  as  the  same  person  whose  name  is  subscribed  to  the  foregoing 
warranty  deed,  appeared  before  me  this  day  in  person,  and  acknowl- 
edged that  he  signed,  sealed,  and  deliveied  the  said  instrument  as  his 
free  and  voluntary  act,  for  the  uses  and  purposes  therein  set  forth. 
And  the  said  Hannah  M.  Hollenbeck,  wife  of  said  Joseph  M.  Hollen- 
beck, having  been  by  me  examined  separate  and  apart,  and  out  of  the 
hearing  of  her  husband,  and  the  contents  and  meaning  of  the  said  in- 
strument in  writing  having  been  by  me  made  known  and  fully  explained 
to  her,  acknowledged  that  she  had  freely  and  voluntarily  executed  the 
same,  without  compulsion  of  her  said  husband,  and  that  she  does  not 
wish  to  retract  the  same.  Given  under  my  hand  and  seal  this  four- 
teenth day  of  January,  A.  D.  1859."  That  the  fact  that  the  person  is 
known  to  the  officer  is  required  to  be  stated,  see  Tally  v.  Davis,  30  111. 
103;  83  Am.  Dec.  179;  Shepherd  v.  Carrel,  19  111.  313;  Adams  v.  Bishop, 
19  111.  395. 


761  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  559 

gai^ ^  wife  of  said ,  having  been  by  me  ex- 
amined/' etc.,  it  was  held  that  the  certificate  was  defective, 
and  that  the  deed  could  not  be  received  in  evidence/ 

§  559.  Statement  of  wish  not  to  retract.  — The 
statutes  relative  to  the  acknowledgment  of  deeds  by  mar- 
ried women  generally  require  that  she  should  state  that 
she  does  not  wish  to  retract  the  execution  of  the  deed. 
She  has  even  at  the  very  last  moment  still  the  right  of  re- 
traction if  she  is  not  perfectly  satisfied.  Whenever  the 
statute  contains  a  provision  of  this  character,  the  certifi- 
cate must  show  that  she  stated  that  she  did  not  wish  to 
retract.^  In  a  case  in  Virginia,  Mr.  Justice  Moncure 
speaks  of  the  necessity  of  this  statement  appearing,  and 
says:  "This  certificate  wholly  omits  any  declaration  of 
the  wife  that  she  luishes  not  to  retract  what  she  had  done, 
and  contains  nothing  which  tends  to  show  that  she  made 
any  such  declaration.  Her  wish  to  retract  what  she  had 
done  is  perfectly  consistent  with  everything  contained  in 
the  certificate.  The  law,  as  we  have  seen,  expressed  this 
declaration  to  be  made  and  entered  of  record,  and  the 
requisition  is  very  material.  I  am,  therefore,  compelled  to 
say  that  in  my  opinion  the  certificate  is  fatally  defective  in 
this  respect,  and  that  the  privy  examination  and  acknowl- 
edgment of  the  wife  were  not  duly  taken."^  A  certifi- 
cate, after  stating  that  the  wife  acknowledged  the  deed, 
proceeded  to  declare  "and  that  she  does  not  wish  to  con- 
tract the  same."  The  court  held  that  the  mistake  ob- 
viously appeared  that  the  word  "contract"  was  written 
for  "retract,"  and  that  it  did  not  affect  the    certificate.* 

»  Merritt  v.  Yates,  71  111.  636;  22  Am.  Rep.  128.  See,  also,  Coburn 
V.  Herriniiton,  114  111.  104. 

"  Landers  v.  Bolton,  26  Cal.  393,  408;  Belcher  v.  Weaver,  46  Tex,  293; 
26  Am.  Rep.  267;  Linn  v.  Patton,  10  W.  Va.  187;  Bateman's  Petition, 
11  R.  I.  585;  Ruleman  v.  Pritchett,  56  Tex.  482;  Davis  v.  Agnew,  67 
Tex.  206;  Burkett  f.  Scarborough,  59  Tex.  496;  ChurchilU.  Monroe,  1 
R.I.  20'J;  Blair  v.  Sayre,  29  W.  Va.  604;  Boiling  v.  Teel,  76Va.  487; 
Laidley  v.  Central  Land  Co.,  30  W.  Va.  50o. 

»  Grove  v.  Zumbro,  14  (iratt.  501,  51(j.  See,  also,  Chauvin  v.  Wagner, 
18  Mo.  531 ;  Le  Bourgeoise  v.  IMcNamara,  5  Mo.  App.  576,  appendix. 

*  Belciier  v.  Weaver,  46  Tex.  293,  297;  26  Am.  Rep.  267. 


§  559    ACKNOWLEDGMENT  BY  MARRIED  WOMEN.       762 

In  Ohio,  the  statute  provided  that  if  a  married  woman, 
after  the  contents  of  the  deed  are  explained  to  her,  shall, 
upon  her  separate  examination,  "declare  that  she  did 
voluntary  sign,  seal,  and  acknowledge  the  same,  and  that 
she  is  still  satisfied  therewith,  such  officer  shall  certify 
such  examination  and  declaration  of  the  wife,  together 
with  the  acknowledgment  as  aforesaid  on  such  deed." 
Under  this  statute,  it  was  held  that  a  certificate  of  ac- 
knowledgment which  omitted  the  statement  "that  she  is 
still  satisfied  therewith,"  is  defective/  In  Rhode  Island,  the 

1  Ward  V.  Mcintosh,  12  Ohio  St.  231.  In  this  case,  Peck,  J.,  deliv- 
ered the  opinion  of  the  court,  'knd  said :  "At  common  law  the  wife  could 
not,  during  coverture,  transfer  her  interest  in  real  estate,  by  any  ordi- 
nary conveyance,  and  this  enabling  statute  only  authorizes  its  being  done, 
under  certain  guards  and  restrictions,  designed  to  obviate  any  undue 
influence  or  persuasion  of  the  husband,  and  leave  her  free  and  un- 
trammeled.  It  would  seem,  therefore,  that  every  precaution  which  the 
statute  enjoins  should  be  substantially  complied  with  before  an  instru- 
ment executed  by  her  shall  have  the  effect  of  encumbering  or  divesting 
her  estate.  Prominent  among  these  safeguards  is  the  provision  requir- 
ing a  declaration  by  the  wife  to  the  officer  taking  the  acknowledgment, 
in  the  absence  of  the  husband,  and  after  explanation  of  the  effect  of 
the  instrument,  not  only  that  she  did  voluntarily  sign,  seal,  and  ac- 
knowledge it,  which  was  substantially  complied  with  in  the  above  cer- 
tificate, but  also  that  she  is  still  satisfied  therewith,  and  willing  to  part  with 
the  interest  it  purports  to  convey.  The  husband,  without  resorting  to 
coercive  measures,  may  induce  a  dependent  and  coniidiiig  wife  to  con- 
sent to  a  sacrifice  of  her  true  interests — a  sacrifice  to  which  she  may 
have  voluntarily,  though  reluctantly,  consented.  This  provision  was 
designed  to  confer  upon  a  wife  thus  circumstanced  a  locus  penitentix — an 
opportunity  to  witlidraw  before  becoming  irrevocably  bound.  To  this 
end,  she  is  to  be  removed  temporarily  from  the  presence  and  direct 
influence  of  her  husband,  and  informed  of  the  legal  effect  of  the  in- 
strument she  has  executed,  and  required  to  declare  her  continued 
satisfaction  with  or  dissent  from  the  projected  contract.  In  view  of  the 
extraordinary  influence  which  an  embarrassed  or  unscrupulous  husband 
may  exercise  over  one  in  such  intimate  relations  with  him,  such  a  pro- 
vision seems  eminently  just  and  appropriate Courts  have,  cer- 
tainly, gone  great  lengths  in  sustaining  conveyances  of  married  women, 
which  have  been  defectively  acknowledged.  They  were,  no  doubt, 
stimulated  to  do  so  by  the  fact  that  otherwise  the  parties  aggrieved  would 
be  without  remedy ;  but  this  is  no  longer  true,  as  the  constitution  and 
the  law  at  this  day,  in  all  proper  cases,  afford  a  remedy  against  such  per- 
sons. A  somewhat  similar  question  arose  in  the  States  of  Illinois  and 
Missouri,  under  statutes  of  those  States  by  which  the  deed  of  a  feme 
covert  ia  made  obligatory  upon  her,  if  she,  upon  separate  examination, 


763  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  559 

statute  provided  that  the  wife  should  be  examined  privily 
and  apart  from  her  husband,  and    should  declare  to  the 

shall  acknowledge  that  she  executed  the  deed  voluntarily,  etc.,  and  does 
not  wish  to  retract,  'he  certificate  failing  to  state  that  she  did  not  vnsh  to 
retract.  In  each  of  those  States  the  courts  were  divided  on  the  question 
,  whether  a  fair  construction  of  the  statutes,  under  whicli  the  acknowledg- 
ments were  taken,  required  the  officer  to  certify  that  she  did  not  wish  to 
retract;  but  all  the  judges  seem  to  concur  in  holding  that  if  it  was  so 
required,  the  objection  would  be  fatal :  Hughes  et  al.  v.  Lane  et  al.,  11  111. 
123;  50  Am.  Dec.  436;  Chauvin  et  al.  v.  Wagner,  18  Mo.  531.  The 
question  which  divided  the  courts  of  those  States  could  not  arise 
under  our  statute,  which  imperatively  requires  the  declaration  to 
be  made,  and  if  made,  to  be  certified  upon  the  deed  itself.  We 
are  aware  that  the  views  here  expressed  are  in  conflict  with  the 
case  of  Card  v.  Patterson,  5  Ohio  St.  319.  In  that  case,  which 
arose  under  the  Act  of  1831,  a  certificate  by  a  justice  of  the  peace, 
'  that  the  said  Maria  (the  wife),  being  by  me  examined,  separate  from  her 
husband,  declared  that  she  signed  the  same  of  her  own  free  will  and  ac- 
cord,' preceded  by  the  joint  acknowledgment  of  the  deed  by  her  and  her 
husband,  was  held  effective  to  transfer  her  interest  in  the  lands  conveyed. 
This  certificate,  it  is  true,  varies  from  the  certificate  of  Mrs.  Mcintosh 
in  this,  tliat  it  is  preceded  by  a  joint  acknowledgment  of  husband  and 
wife,  and  renders  the  inference  that  she  thereby  expressed  her  satisfac- 
tion, less  forced  than  in  the  case  at  bar.  Still  it  is  not  to  be  disguised 
that  under  our  conceptions  of  the  statute,  the  certificate  was  insutticient. 
The  declaration  of  continued  satisfaction  to  which  we  attach  such  im- 
portance does  not  appear  to  have  been  noticed  by  the  court  or  the  counsel 
managing  the  cause.  The  court  refer  to  the  statute  of  1818,  and  the  de- 
cisions under  it,  and  the  earlier  laws,  and  after  contrasting  the  certificate 
before  them  with  one  adjudged  to  be  sufficient  under  the  Act  of  1818,  in 
Vattier  v.  Chesseldine,  16  Ohio,  661,  arrive  at  the  conclusion  'that  the 
certificate  in  question,  under  the  adjudications  of  this  court,  substantially 
complies  witli  the  requirements  of  the  Act  of  1831.'  None  of  the  statutes 
under  which  the  adjudications  referred  to  were  made,  contain  tiie  same 
or  any  similar  provision,  it  having  been  introduced  for  the  fir?ttiine  into 
the  Act  of  1831,  to  protect  the  estates  of  married  women  from  hasty  and 
ill-advised  alienations.  While  we  entertain  profound  respect  for  the 
learning  and  ability  of  the  court  making  the  decision  in  that  case,  we  are 
constrained  to  think  it  was  decided  upon  its  supposed  analogy  to  adjudi- 
cations under  statutes  essentially  variiint,  and  without  properly  estimat- 
ing the  change  effected  or  intended  to  be  effected  by  the  Act  of  1831. 
We  are  also  sensible  of  the  impolicy  of  disturbing  decisions  in  reference 
to  alienations  of  real  estate;  but  we  regard  the  decision  in  Card  v.  Pat- 
terson as  a  substantial  repeal  of  an  express  statutory  provision,  and  a 
majority  of  the  court  are  fain  to  believe  that  a  speedy  retraction  will  be 
productive  of  lees  injustice  than  is  likely  to  ensue  from  a  blind  adherence 
to  a  solitary  decision  made  in  direct  contravention  of  the  statute."  But 
Bee,  also,  Etheridge  v.  Ferebee,  9  Ired.  312. 


§  559  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  764 

ofBcer  taking  such  acknowledgment  that  the  deed  shown 
and  explained  to  her  by  the  officer  is  her  voluntary  act, 
and  that  she  does  not  wish  to  retract  the  same.  A  certifi- 
cate of  acknowledgment  stated  that  the  husband  acknowl- 
edged the  deed  to  be  his  voluntary  act  and  deed,  and  the 
wife  **  being  examined  separately  and  apart  from  her  bus- 
band,  acknowledged  the  same  before  me."  The  court 
said  that  the  fair  construction  of  the  language  was  that 
she  was  examined  separate  and  apart  from  her  husband 
in  reference  to  the  deed,  but  added:  "The  result  of  that 
examination  is  but  imperfectly  given,  when  it  is  added, 
she  acknowledged  the  same.  The  object  of  the  privy 
examination  is  not  merely  that  she  should  declare  to 
the  magistrate  that  she  had  executed  the  deed,  but  that 
she  might  declare  whether  she  had  executed  it  freely, 
without  constraint,  and  that  it  is,  at  the  moment  of  ex- 
amination, her  free  and  voluntary  act.  The  magistrate 
may  have  intended  this  by  his  certificate.  But  the 
question  is  not  what  the  magistrate  intended,  but  what 
the  words  of  the  certificate  by  fair  construction  ex- 
pressly or  necessarily  imply.  We  cannot  extend  these 
words  by  construction,  without  taking  for  granted  the 
very  fact  which  it  was  the  design  of  the  statute  that  the 
magistrate  should  certify.  But  for  this  we  may  as  well 
assume  that  the  words  imply  that  she  acknowledged  it  to 
be  an  instrument  executed  by  constraint,  as  that  it  was 
her  free  and  voluntary  act.  The  certificate,  therefore,  is 
insufficient  as  it  stands,  and  cannot  be  extended  by  con- 
struction without  taking  for  granted  the  fact  which  it  was 
the  intent  of  the  statute  that  the  certificate  should  ascer- 
tain, to  wit,  whether  the  deed  was  her  willing  or  unwill- 
ing act  at  the  time  of  taking  the  acknowledgment.  Tt  is 
upon  the  deed,  as  tlie  present  act  of  her  will,  that  the 
statute  emphatically  insists,  when  it  requires  that  she 
should  declare  that  she  doth  not  wish  to  retract  the 
same."  ^  In  a  later  case  in  the  same  State,  where  the 
certificate  omitted  the  statement  of  a  wish  not  to  retract, 

1  Churchill  v.  Moore,  1  R.  I.  209,  211,  per  Durfee,  C.  J. 


765  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  560 

it  was  argued  that  it  might  be  presumed  that  she  did  not 
after  signing,  change  lier  mind.  But  the  court  responded: 
"  Undoubtedly  we  may  presume  so,  and  yet  the  fact  may 
be  otherwise.  And  because  it  may  be  otherwise,  the  stat- 
ute requires  the  more  plenary  proof  afforded  by  the  dec- 
laration. We  have  no  right  to  dispense  with  so  positive 
a  requirement Of  course,  it  is  not  necessary,  how- 
ever desirable  it  may  be,  for  the  certificate  to  follow  the 
language  of  the  statute.  But  it  is  necessary  for  it  to  show, 
either  expressly  or  by  intendment,  that  the  acknowledg- 
ment or  declaration  prescribed  has  been  given  in  sub- 
stance if  not  in  form."^  But  it  is  not  essential  that  the 
oflBcer  should  ask  her  in  the  words  of  the  statute  whether 
she  wished  to  retract  the  deed,  but  it  is  sufiicient  if  he 
brings  out  from  her  the  fact  that  it  is  her  present  purpose 
vol^ntaril}'^  to  execute  the  deed.* 

§  560.  Explanation  of  contents  of  deed. — Another 
requirement  generally  found  running  through  all  the 
statutes  is  that  the  officer  shall  explain  or  make  known  to 
the  married  woman  seeking  to  acknowledge  the  deed,  the 
contents  of  the  instrument.  This  is  generally  regarded 
as  an  essential  requirement,  and  the  fact  of  such  explana- 
tion should  be  stated  in  the  certificate.  In  a  case  in  Cal- 
ifornia, where  the  certificate  of  acknowledgment  was 
defective  in  this  respect,  and  where  the  wife  was  unable  to 
write.  Chief  Justice  Terry,  in  speaking  of  this  provision 
of  the  statute,  observed:  "The  legislature  designed  by 
these  provisions  to  prevent  the  execution  of  any  convey- 
ance by  a  married  woman  from  being  procured  by  deceit 
or  misrepresentation,  and  this  object  could  be  effectually 
accomplished  only  by  requiring  the  instrument  to  be  ex- 
plained to  her  before  being  acknowledged,  in  order  that 
the  execution  might  be  retracted  if  procured  by  improper 
influences.  Under  our  law,  no  presumption  of  knowledge 
on  the  part  of  a  married  woman  of  the  contents  of  a  deed 
arises  from  the  fact  of  executing  it,  and  especially  could 

1  Bateman's  Petition,  11  R.  T.  585,  587. 

'  Adama  v.  Pardue  Tex.  Civ.  Ajjp.  36;  S.W.  Rep.  1015. 


§  560    ACKNOWLEDGMENT  BY  MARRIED  WOMEN.       766 

no  such  presumption  arise  in  the  present  case,  as  it  ap- 
pears from  the  instrument  itself  that  the  wife  was  unable 
to  write."  ^  This  question  was  very  elaborately  discussed 
in  a  case  that  arose  in  Virginia,  and  the  conclusion  was 
reached  that  this  requirement  of  the  statute  was  indis- 
pensable to  a  valid  acknowledgment,  and  a  certificate 
wliicli  omitted  to  state  that  it  had  been  done  was 
defective.^  Allen,  J.,  said:  "The  certificate  in  the  case 
under  consideration  varies  from  the  form  prescribed 
in  several  respects;  but  enough  appears  upon  its  face 
to  show  that  the  law  was  substantially  complied  with 
except  in  one  particular;  the  justices  do  not  certify 
that  the  deed  was  fully  explained  to  the  feme,  nor  is 
there  anything  in  the  certificate  from  which,  in  my 
opinion,  we  are  authorized  to  infer  that  at  the  time  of 
the  acknowledgment  of  the  deed  she  had  knowledge  o^its 
contents.  It  has  been  argued  with  much  ingenuity  that, 
as  it  appears  from  the  certificate  that  she  had  acknowl- 
edged that  she  had  willingly  executed  said  deed  on  her 
part,  that  implies  a  consent,  and  that  she  could  not 
consent  to  that  of  which  she  was  ignorant.  The  argu- 
ment strikes  me  as  more  specious  than  sound.  We  can 
easily  imagine  that  a  wife  might  be  readily  brought  to 
yield  her  consent  to  an  act  of  this  kind  desired  by  her  hus- 

^  In  Pease  v.  Barbiers,  10  Cal.  436,  440.  See,  also,  Hutchinson  v. 
Ainsworth,  63  Cal.  28G;  Langton  v.  Marshall,  59  Tex.  £96;  Morman  v. 
Board,  11  Bush,  135;  Burnett  v.  McCluey,  78  Mo.  676;  Bateman's  Peti- 
tion, 11  R.  I.  585;  Boiling  v.  Teel,  76  Va.  487 ;  Barnet  v.  Barnet,  15  Serg. 
&  R.  72;  16  Am.  Dec.  516;  O'Ferrall  v.  Simplot,  4  Greene  G.  162;  s.  c.  4 
Iowa,  381 ;  Ruleman  v.  Pritchett,  56  Tex.  482;  Johnson  v.  Bryan,  62  Tex. 
623;  Norton  v.  Davis,  83  Tex.  32;  Burkett  v.  Scarborough,  59  Tex. 
495 ;  Hayden  v.  Moffatt,  74  Tex.  647 ;  15  Am.  St.  Rep.  866 ;  Johnson  v. 
Taylor,  60  Tex.  360;  Miller  v.  Went  worth,  82  Pa.  St.  280;  Spencer  v. 
Reese,  165  Pa.  St.  158;  Hornbeck  v.  Mutual  etc.  Assn.,  88  Pa.  St.  64; 
Roney  v.  Moss,  76  Ala.  491;  Bagby  v.  Emberson,  79  Mo.  139;  Tavenner 
V.  Barrett,  21  W.  Va.  656;  Boiling  v.  Teel,  76  Va.  487.  In  Barnet  i;.  Bar- 
net,  supra,  it  was  said:  "It  does  not  appear  by  the  certificate  of  this 
acknowledgment  that  the  contents  of  the  deed  were  made  known  to  the 
wife,  or  that  she  did,  in  fact,  know  them.  It  has  been  expressly  decided 
by  this  court  that  this  is  an  incurable  defect,  and,  therefore,  the  opinion 
of  the  court  below  was  correct." 

*  Hairston  v.  Randolph,  12  Leigh,  445, 


767  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  560 

band,  though  ignorant  of  its  character.  But  with  the 
plain  requisitions  of  the  statute  before  us,  such  specula- 
tions are  unnecessary.  At  common  hiw  she  could  not 
convey.  The  statute  points  out  a  mode  by  which  a  valid 
conveyance  may  be  made.  It  is  an  innovation  on  the 
common  law,  and  its  terms  must  be  substantially  com- 
plied with.  By  it,  the  certificate  must  in  some  form  show, 
not  only  that  she  acknowledged  the  conveyance,  and  that 
she  willingly  signed,  sealed,  and  delivered  the  same,  and 
wished  not  to  retract  it,  but  that  it  was  explained  to  her. 
The  explanation  is  to  be  made  that  she  may  have  knowl- 
edge of  the  contents;  but  if  the  acknowledgment  implies 
consent,  and  consent  implies  knowledge,  then  the  simple 
acknowledgment  would  have  been  sufficient,  and  the  other 

requirements  would   be   supererogatory Whilst  a 

compliance  with  all  the  terms  of  the  law  is  required  to 
appear  on  the  face  of  the  certificate,  we  have  a  reasonable 
assurance  that  the  leading  object  of  the  statute  will  be  as- 
sured; that  is,  the  providing  the  wife  with  an  opportunity, 
after  a  full  understanding  of  the  nature  of  the  act  she  is 
about  to  do,  of  exercising  her  own  free  will.  The  certifi- 
cate in  the  present  case  does  not,  in  terms,  state  that  the 
deed  was  explained  to  the  wife;  and  there  is  nothing  on 
the  face  of  it  to  the  same  effect  which  justifies  the  infer- 
ence that  it  was  explained,  or  that  she  had  knowledge  of 
the  nature  of  the  act  she  was  doing;  on  the  contrary, 
every  word  of  the  certificate  may  be  true,  and  yet  she 
may  never  have  read  the  deed  or  heard  its  contents. 
Therefore,  I  think  the  certificate  is  defective  and  the  deed 
not  valid  as  to  her."  And  Mr.  Justice  Cabell  said:  "  In 
the  case  of  a  deed  executed  by  a  person  not  under  the 
disability  of  coverture,  the  law  infers,  prima  facie,  that 
the  party  executing  it  had  sufficient  knowledge  of  the  na- 
ture and  efi"ect  of  the  deed,  and  that  he  acted  freely  and 
voluntarily.  Therefore,  nothing  further  is  required  than 
proof  of  the  mere  execution  of  the  deed.  But  the  law  makes 
no  such  inference  in  the  case  of  married  women,  who, 
being  under  the  power  and  dominion  of  their  husbands, 


§  560  a       ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  768 

may  be  sometimes  coerced  to  do  that  which  they  would 
not  willingly  do;  and  even  where  there  is  no  coercion, 
they  may  be  deceived  as  to  the  nature  and  effect  of  the 
act  proposed  to  be  done,  by  the  representations  of  their 
husbands,  in  which  they  generally  repose  an  unsuspect- 
ing confidence.  To  guard  the  wife  against  these  dangers, 
the  law  is  not  satisfied  with  her  mere  acknowledgment  of 
the  deed.  Such  acknowledgment  does  not  and  ought  not 
to  imply  that  she  acted  either  voluntarily  or  with  proper 
knowledge.  It  may,  in  fact,  have  been  made  in  terror  of 
her  husband,  or  in  ignorance  of  the  nature  and  effect  of 
the  deed.  The  law,  therefore,  has  wisely  ordained  that, 
to  give  validity  to  the  deed  of  a  married  woman,  it  must 
appear  that  in  executing  the  deed  she  acted  both  under- 
standingly  and  willingly.  The  certificate  before  us  is 
fatally  defective.  It  does  not  appear  that  Mrs.  Randolph 
was  acquainted  with  the  nature  and  effect  of  the  deed. 
The  certificate  does  not  state  that  the  deed  was  explained 
to  her  by  the  justices;  nor  does  it  state  any  circumstance 
from  which  her  knowledge  of  its  contents  can  be  fairly 
inferred."^ 

§  560  a.  Explanation  to  widow. — The  statutes  requir- 
ing that  the  contents  of  a  deed  should  be  explained  by 
the  officer  taking  the  acknowledgment  of  a  married 
woman,  apply  only  to  femes  covert.  The  object  of  such  a 
provision  of  the  statute  is  that  she  may  understand  what 
she  is  doing,  and  may  act  freely  and  voluntarily  without 
influence  from  her  husband.  But  where  she  has  no  hus- 
band to  exercise  this  influence  against  which  the  law  at- 
tempts to  protect  her,  there  is  no  reason  for  explaining 
the  deed  to  her.  Hence,  it  is  unnecessary  to  explain  a 
deed  to  a  widow,  and  in  a  suit  to  set  aside  a  deed  claimed 
to  have  been  obtained  by  undue  influence,  the  fact  that 
the  officer  failed  to  explain  to  her  the  contents  of  the  deed 
cannot  be  admitted  in  evidence.^ 

'  Hairston  v.  Eandolph,  supra;  Boiling  v.  Teel,  76  Va.  487.  But  see 
Tod  V.  Baylor,  4  Leigh,  498. 

»  Beville  v.  Jones,  74  Tex.  148. 


769  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §   561 

§  561.  Explanation  in  presence  of  husband. — It  might 
seem  that  everything  connected  with  the  acknowledgment 
of  a  deed  by  a  married  woman  should  occur  or  be.  per- 
formed out  of  the  presence  of  the  husband.  It  has  been 
so  repeatedly  said,  that  the  acknowledgment  is  meant  to 
take  the  place  of  the  ancient  fine,  and  that  the  law  has 
thrown  around  the  wife  all  the  safeguards,  to  prevent  any 
imposition  or  coercion  on  the  part  of  her  husband,  that 
it  would  seem  to  follow,  as  a  natural  conclusion,  that 
none  of  the  elements  of  a  perfect  acknowledgment  should 
be  interfered  with  by  the  presence  of  her  husband,  who, 
the  law  generally  presumes,  will  exercise  an  undue  in- 
fluence over  her.  But  it  has  been  decided  that  an  ex- 
planation of  the  contents  of  the  deed  in  the  presence  of 
the  husband  does  not  affect  the  acknowledgment.^ 

1  Moorman  v.  Board,  11  Bush,  135.  In  that  case  it  was  said  by  Lind- 
say, J.,  who  delivered  the  opinion  of  the  court  (p.  139):  "The  decided 
weight  of  the  testimony  id  in  favor  of  the  conclusion  that  Board  was  not 
in  the  room,  nor  in  sight  of  his  wife  at  the  time  the  clerk  took  the  ac- 
knowledgment to  the  deed.  Instead  of  contradicting  the  presumption 
of  law  that  she  was  examined  separately  and  apart  from  him,  it  rather 
supports  said  presumption.  But  it  is  proved  by  the  clerk,  if  he  be  a 
competent  witness  tu  jirove  such  a  fact,  that  he  did  not  then  and  there, 
nor  in  fact  at  any  time,  explain  to  her  the  contents  of  the  instrument. 
Appellants  insist  that  it  is  equally  as  essential  to  the  validity  of  a  con- 
veyance executed  by  a  married  woman  that  the  clerk  shall  explain  its 
contents,  and  its  effect  to  her,  separately  and  apart  from  her  husband, 
as  that  her  acknowledgment  and  consent  shall  be  so  given.  The  ac- 
knowledgment and  the  consent  that  the  conveyance  may  be  recorded 
must  be  the  free  and  unconstrained  act  of  the  wife.  Unless  the  one  is 
made  and  the  other  given  separately  and  apart  from  the  husband,  the 
presumption  that  she  did  not  act  freely  and  without  constraint,  arises 
as  mattt-r  of  law,  and  is  conclusive  of  the  question.  While  the  law  pre- 
sumes, for  the  protection  of  the  wife,  that  the  presence  of  the  husband 
puis  her  in  moral  duress,  at  least  as  to  her  actions,  there  is  no  such  pre- 
sumption as  to  the  acquisition  of  information  by  her,  touching  the  con- 
tents and  legal  effect  of  a  written  instrument  by  which  her  rights  are  lo 
be  affected.  The  information  may  be  imparted  in  the  presence  of  the 
husband.  The  wife  may,  in  point  of  fact,  draft  the  instrument  herself, 
and  may  comprehend  it  more  fully  than  the  husband.  To  insure  her 
an  opportunity  for  free  inquiry,  the  law  directs  the  clerk  to  explain  tlie 
deed  to  her  separate  and  apart  from  her  husband;  but,  as  it  is  the  in- 
formation as  to  the  contents  and  legal  effect  of  the  instrument,  and  not 
the  time,  place,  and  mode  in  wliich  it  is  imparted,  nor  the  person  who 
ItEKus,  Vol.  1.  —  4'J 


§  561  a        ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  770 

§  561  a.  Explauation  of  title. — Tlie  officer  is  not  com- 
pelled to  explain  immaterial  matters,  nor  is  he  compelled 
to  explain  to  a  married  woman,  acknowledging  her  deed 
before  him  the  condition  of  her  title,  unless  by  a  special 
covenant  inserted  in  the  deed  her  title  is  a  part  of  it. 
The  officer  is  not  compelled  to  inform  her  whether  her 
title  rests  in  her  or  in  her  children,  or  to  give  her  any 
advice  or  information  whatever  concerning  her  title.  If 
he  were  compelled  to  do  this  it  would  be  necessary  for 
him  to  examine  the  records,  and,  possibly,  to  secure  a 
legal  opinion,  before  he  could  take  a  valid  acknowledg- 
ment. It  may  be  presumed  that  the  holder  of  a  title 
knows  the  character  and  extent  of  it,  but  if  not,  and  no 

imparts  it,  that  constitutes  the  essence  of  the  legal  requisition,  it  cannot 
be  regarded  as  indispensably  necessary  that  the  deed  shall  have  been 
explained  by  the  clerk  in  the  absence  of  the  husband  in  order  to  make 
it  valid.  That  it  was  so  explained,  and,  therefore,  that  Mrs.  Board  did 
understand  its  contents  and  legal  effect,  is  to  be  presumed  from  th  •  cer- 
tificate of  the  clerk.  Appellants  seek  to  overcome  this  last  and  essential 
presumption  by  showing,  not  that  she  did  not  understand  the  deed,  but 
that  the  clerk  did  not  explain  it  to  her.  We  need  not  intimate  what 
our  decision  would  be  if  the  proof  left  the  case  in  this  attitude.  But  it 
is  proved  beyond  question  that  the  attorney  who  prepared  the  convey- 
ance, and  who,  in  the  matter,  may  be  said  to  have  represented  as  well 
Mrs.  Board  as  her  husband,  did  read  the  deed  to  her,  and  did  explain  to 
her  its  contents  and  legal  effoct.  It  is  objected,  however,  that  when  this 
explanation  was  made  the  husband  was  present,  and,  therefore,  Mrs. 
Board  did  not  have  an  opportunity  to  make  full  and  free  inquiry.  The 
evidence  does  not  very  clearly  show  that  the  husband  was  present  at 
the  time  of  the  explanation;  but,  if  it  be  true  that  he  was,  it  is  still 
manifest  that  Mrs.  Board  made  all  the  inquiries  that  she  desired  to 
make.  When  the  clerk  in  the  absence  of  her  husband  offered  to  make 
the  necessary  explanation,  she  failed  to  avail  herself  of  the  opportunit}' 
to  make  further  inquiry,  and  declined  to  listen  to  the  tendered  explana- 
tion, upon  the  ground  that  she  had  heard  the  deed  read  and  understood 
it.  Another  circumstance  worthy  of  note  is  that  the  conveyance  accords 
exactly  with  the  desire  and  intention  of  Mrs.  Board  as  expressed  to 
Heston,  when,  in  the  absence  of  her  husband,  she  requested  him  to 
accept  the  conveyance,  in  order  that  she  might  reconvey  to  the  appellee. 
We  are  asked  in  this  case,  upon  oral  testimony,  to  disregard  the  pre- 
sumption of  law  arising  from  the  certificate  of  the  clerk  that  Mrs.  Board 
understood  the  contents  and  effect  of  the  deed  when  she  acknowledged, 
it,  and  consented  that  it  should  be  recorded.  This  oral  testimony  not 
only  fails  to  contradict  this  presumption,  but,  in  fact,  shows  that  it  ia 
true.     Such  being  the  case,  the  presumption  must  control." 


771       ACKNOWLEDGMENT  BY  MARRIED  WOMEN.       §§562,563 

fraud  or  imposition  is  practiced  ia  obtaining  the  convey- 
ance, his  or  her  ignorance  of  the  title  will  supply  no 
reason  for  the  invalidation  of  the  deed.^ 

§  562.      Where  officer  himself  not  required  to  explain. 

If  the  statute  does  not  require  that  the  officer  shall  him- 
self explain  the  contents  of  the  deed  to  the  wife,  it  is  suf- 
ficient if  slie  is  made  acquainted  with  the  contents  by  any 
person,  that  the  officer  is  cognizant  of  this  fact  and  duly 
certifies  to  it  in  his  certificate.^  A  certificate  of  acknowl- 
edgment stated  that  a  married  woman  "acknowledged  and 
declared  that  she  was  well  acquainted  with  the  contents  of 
the  deed."  Although  the  certilicate  did  not  state  that  the 
contents  of  the  conveyance  were  made  known  to  her  by 
the  officer,  it  was  considered  sutficient.^ 

§  563.  Omission  of  explanation. — A  statute  in  Mis- 
souri, authorizing  the  acknowledgments  of  a  married 
woman  to  be  taken  before  certain  courts,  required  that 
the  certificate  should  set  forth  that  the  contents  were 
"made  known  and  explained  to  her."  In  a  case  before  the 
court  the  certificate  stated  that  the  married  woman  was 
made  acquainted  with  the  contents  of  the  deed,  but  did 
jiot  state  that  they  were  explained  to  her.  The  court  held 
that  this  omission  did  not  vitiate  the  certificate  of  ac- 
knowledgment.* "The  duty  enjoined  upon  the  officer,"  ^ 
said  the  court,  "is  to  see  that  the  woman  understands  the 

^  Ray  V.  Crouch,  10  Mo.  App.  321 ;  Morrison  v.  McKee,  11  Mo.  App. 
594. 

'■'  Jansen  v.  McCahill,  22  Cal.  563,  565;  83  Am.  Dec.  84;  French  Bank 
V.  Beard,  54  Cul.  480. 

^  Thomas  v.  Meir,  18  Mo.  573.  Concerning  the  objection  that  it  did 
not  api)ear  tliat  tlie  offici-r  acquainted  the  wife  with  the  contents  of  tlie 
deed,  (jamble,  J.,  in  deUvering  the  opinion  of  tiie  court,  said ;  "  Tlie  first 
objection  will  not  be  considered  in  this  case,  but  will  be  dismissed  with 
the  remark  that  when  a  married  woman,  on  examination  apart  from  iier 
husband,  declares  that  she  is  well  acquainted  with  the  contents  ol  the 
deed,  the  case  ouglit  to  l)e  considered  as  entirely  unlike  one  in  which  the 
certificate  is  silent  about  her  acquaintance  with  the  contents  of  the  deed. 
The  certificate  should  receive  the  most  liberal  construction  in  favor  of 
supporting  tlie  conveyance." 

*  Chauvin  V.  Wagner,  18  Mo.  541. 


§  563  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  772 

nature  and  effect  of  the  instrument  she  has  executed.  It 
would  clearly  be  superfluous  for  the  court  to  attempt  an 
explanation  of  the  contents  of  a  deed,  if  the  woman  should 
so  state  her  own  understanding  of  its  effect  as  to  show  that 
she  already  understood  it  perfectly,  and  the  certificate 
would  be  false,  if  it  said  that  the  contents  of  the  deed  were 
made  known  and  explained  to  her,  when  the  court  took 
the  acknowledgment  upon  ascertaining  that  she  already 
knew  and  understood  the  contents/  Suppose  a  certificate 
should  state  that  the  woman  appeared  before  the  court  and 
presented  the  deed  for  acknowledgment,  stating  that  it 
was  a  deed  for  her  own  property,  conveying  it  to  the 
grantee  for  a  consideration,  which  she  named,  and  which 
was  the  consideration  in  the  deed,  and  that  the  grantee  was 
to  receive  the  absolute  estate  in  fee  simple,  and  that  she 
described  the  property  just  as  it  was  described  in  the  deed. 
If  her  statement,  thus  made  to  the  court,  corresponded 
with  the  language  and  legal  effect  of  the  deed,  it  is  not 
doubted  that  she  had  already  such  acquaintance  with  the 
contents  of  the  instrument  as  would  dispense  with  any 
attempt  on  the  part  of  the  court  to  explain  the  contents 
to  her.  The  design  of  the  law  would  be  accomplished, 
although  the  officer  imparted  no  information  to  her.  It 
would  be  a  question  of  casuistr}',  whether  the  officer  could 
certify  that  he  made  her  acquainted  with  the  contents  of 
the  deed,  or  explained  the  contents  to  her,  when  she  knew 
them  perfectly  before  she  came  before  him.  The  courts 
and  officers  intrusted  with  the  duty  must  be  supposed  to 
understand  the  object  of  the  statute  in  requiring  them  to 
see  that  the  woman  knows  the  effect  of  her  act,  and  the 
certificate  is  only  required  to  show  that  the  duty  enjoined 
upon  the  officer  has  been  performed.  In  some  cases,  as 
where  the  instrument  is  in  a  language  with  which  the 
woman  is  not  acquainted,  it  would  be  necessary  to  explain 
the  meaning  of  the  words  employed  in  the  instrument. 
In  some  cases  where   there   are  complicated  limitations, 

^  Citing  Mclntyre  v.  Ward,  5  Binn.  301 ;  Talbot  v.  Simpson,  1  Peters 
C.  C.  190. 


773  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.       §  563  a 

there  may  be  a  necessity  for  an  explanation  of  the  effect 
of  such  parts  of  the  instrument.  In  such  cases,  the  officer 
or  court  would  explain  the  instrument,  and  the  law  requires 
the  explanation  to  be  made,  unless  the  woman  had  the 
requisite  knowledge  without  the  explanation.  The  certifi- 
cate in  the  present  case  states  that  the  woman  was  made 
acquainted  with  the  contents  of  the  deed,  and  this  may  be 
regarded  as  a  statement  that  she  understood  the  nature 
and  effect  of  the  instrument.  There  are  many  cases  in 
different  courts  in  which  such  strictness  is  required  as 
would  render  this  acknowledgment  ineffectual,  because 
the  fact  is  not  stated  that  the  contents  of  the  deed  were 
explained  to  Mrs.  Chauvin;  but  we  are  not  disposed  to 
require  any  such  literal  compliance  with  the  statute.  It 
is  said  in  the  certificate  that  the  contents  were  familiarly 
known  to  her,  because  that  is  the  meaning  of  the  words 
that  she  was  made  'acquainted  with  the  contents,'  and  we 
will  intend  that  there  was  a  case  before  the  court  taking 
the  acknowledgment,  which  did  not  require  any  explana- 
tion to  be  made  to  the  woman."  ^ 

§  563  a.     Presumption  of  knowledg-e. — In  certain  cases 
the  fact  of  knowledge  of  the  contents  of  the  deed  may  be 

'  Chauvin  v.  Wagner,  supra.  See,  also,  Ray  v.  Crouch,  10  App.  Mo. 
321;  Talbot  v.  Si^-pson,  V  Peters  C.  C.  1S8;  Martin  v.  Davidson,  3  Bush, 
572;  Nantz  v.  Bailey,  3  Dana,  111;  Gregory  v.  Ford,  5  Mon.  B.471;  Kav-' 
anaiigli  v.  Day,  10  K.  I.  393,  397  ;  14  Am.  Rep.  691 ;  Hughes  v.  Lane,  11  111. 
123;  50  Am.  Dec.  436;  Nippel  v.  Hammond,  4  Col.  211.  In  Talbot  v. 
Simpson,  supra,  Washington,  J.,  said:  "As  to  her  know'edge  of  the  con- 
tents of  the  deed,  it  is  manifest,  that  unless  the  magistrate  made  them 
known  to  her,  or  she  to  him,  he  has  certified  a  falsehood,  for  he  states 
it  as  a  fact,  that  she  knew  the  contents,  which  he  could  not  truly  certify 
unless  he  had  in  some  way  satisfied  hims-elf  that  she  did  know  them. 
And  of  what  importance  would  it  be  whether  she  obtained  this  knowl- 
edge from  the  magistrate,  from  her  own  examination  of  the  deed,  or  even 
from  the  information  of  her  husband,  if  the  fact  certified  be  true  that  she 
knew  the  contents."  Whether  the  certificate  must  state  that  the  deed 
was  explained  to  the  wife  is  for  the  most  part  matter  of  special  statutory 
regulation.  In  some  instances  it  has  l)een  held  unnecessary:  Stevens 
V.  Doe,  6  Blackf.  475;  Gregory  >:  Ford,  5  Mon.  B.  471;  Chesnut  r.  Shane, 
16  Ohio,  599;  47  Am.  Dec.  387;  Card  v.  Patterson,  5  Ohio  St.  319.  -But 
Bee  (iood  V.  Zercher,  12  Ohio,  364;  Connell  v.  Connell,  6  Ohio,  358;  Silli- 
man  v.  Cummins,  13  OJiiu,  116;   Meddock  v.  Williams,  12  Ohio,  377. 


g§   5G4,  565       ACKNOWLEDGMENT  BY  MARRIED  WOMEN.       774 

presumed.  Thus,  iustruraents  providing  for  the  transfer 
of  property  to  a  trustee  in  trust  for  the  grantor  and  his 
wife,  during  their  lives,  and  disposing  of  the  residue  after 
their  death,  hud  been  prepared  after  consultation  and 
deliberation,  and  the  officer  who  took  the  acknowledg- 
ment of  the  grantors  testified  that  the  deeds  had  been 
signed  before  he  came  to  take  the  acknowledgment,  and 
that  the  grantors  ackn  owl  educed  their  execution.  It 
would  be  presumed,  the  court  held,  that  the  grantors  had 
read  the  deeds,  and  that  the  wife  freely  and  voluntarily 
executed  them  with  a  full  knowledge  of  their  contents 
and  of  the  effect  which  they  had  upon  her  rights.^ 

§  564.  Acknowledg-ment  by  deaf  mutes. — The  in- 
formation required  to  be  given  to  a  married  woman  con- 
cerning the  contents  and  purport  of  a  deed,  may  be  done 
by  signs,  if  she  is  a  deaf  mute.  And  she  may  also  signify 
lier  willingness  to  execute  the  deed,  and  the  fact  that  she 
fully  understands  it,  in  the  same  mode.^ 

§  565.  Execution  of  deed  must  be  voluntary  and  free 
from  compulsion. — The  very  essence  of  the  acknowledg- 
ment of  a  married  woman  is  that  the  execution  of  the 
deed  is  her  voluntary  act,  performed  understandingly  and 
without  coercion.  Hence,  to  render  the  certificate  valid, 
this  fact  must  appear  either  by  using  the  words  of  the 
statute  or  words  of  equivalent  signification.^  "  The  essen- 
tial thing  to  be  accomplished  in  effecting  a  conveyance 
by  femes  covert  is  the  privy  examination,  whereby  it  is 
ascertained  that  her  execution  of  the  instrument  was  vol- 
untary, free,  and  without  fear,  compulsion,  or  undue  in- 

^  Massey  v.  Huntington,  118  111.  80. 

^  In  the  Matter  of  Harper,  6  Man.  &  G.  732. 

*  Garrett  v.  Moss,  22  111.  363;  Bartlett  v.  Fleming,  3  W.  Va.  163;  Still- 
well  V.  Adams,  29  Ark.  346;  Louden  v.  Blythe,  27  Pa.  St.  22;  67  Am.  Dec. 
442;  Tubbs  v.  Gate  wood,  26  Ark.  128:  Chaffe  v.  Oliver,  39  Ark.  531; 
Bagby  v.  Emberson,  79  Mo,  139;  Little  r.  Dodge,  32  Ark,  453;  Hayden 
V.  Moffatt,  74  Tex,  647  ;  15  Am.  St.  Kep,  866 ;  Belcher  v.  Weaver,  46  Tex, 
293;  26  Am.  Rep.  267;  Smith  w,  Elliott,  39  Tex.  201;  Pickens  v.  Knisely, 
29  W.  Va.  1;  6  Am.  St.  Rep.  322;  Laughlin  v.  Fream,  14  W.  Va.  322; 
Still  well  V.  Adams,  29  Ark.  346;  BoUen  v.  Teel,  76  Va.  487. 


775  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  566 

fluence.  This  was  the  essential  thing  in  a  conveyance  by 
fine  in  England;  and  in  all  the  varying  legislation  upon 
this  subject  in  this  State,  and  in  all  the  States  of  the 
Union,  this  has  been  the  one  primary  object  in  view. 
Whatever  statutory  provisions  have  reference  to  the  com- 
plete accomplishment  of  that  object,  and  the  protection 
of  the /erne  covert,  must  be  regarded  as  mandatory.  But 
general  provisions  of  the  statute  in  regard  to  the  mode 
of  executing  or  authenticating  such  deeds,  not  having 
reference  to  this  essential  condition,  need  not  be  con- 
sidered as  mandatory,  unless  circumstances  or  the  obvi- 
ous intent  of  the  legislature  so  indicate." '  Where  a 
certiticate  of  acknowledgment  stated  that  the  married 
woman  "acknowledged  to  me  that  she  executed  the  same 
freely  and  voluntarily,  and  for  the  uses  and  purposes 
therein  mentioned,  without  fear  or  compulsion,  and  that 
she  did  not  wish  to  retract  the  same,  well  knowing  the 
contents  thereof,  after  due  explanation  by  me  made,"  it 
was  held  sufficient,  although  it  omitted  the  words  "  un- 
due influence"  contained  in  the  statute.^ 

§  566.  Comments  —  Equivalent  words  for  voluntary- 
act. —  It  is  manifestly  impossible  to  lay  down  any  uni- 
versal rule  by  which  it  can  be  said  that  any  particular 
word  or  jdirase  is  the  equivalent  of  the  words  used  in  the 
statute,  requiring  that  the  act  of  the /erne  covert  shall  be 
voluntary  and  without  compulsion.     All  that  we  can  do 

'  Mount  V.  Kesterson,  6  Cold.  452,  459,  per  Andrews,  J.  See,  also, 
Gill  V.  Fauntleroy,  8  Mon.  B.  177;  Blackburn  v.  Pennington,  8  Mon.  B. 
217;  Jones  v.  Lewis,  8  Ired.  70;  47  Am.  Dec.  338;  J^ucas  r.  Cobbs,  1 
Dev.  &  B.  228;  Pratt  v.  Battels,  28  Vt.  685. 

'  Goode  V.  Smith,  13  Cal.  81.  Baldwin,  J.,  in  delivering  the  opinion 
of  the  court,  said:  "We  think  that  the  acknowledgment  was  sufficient 
as  to  the  husl)and  and  wife.  It  is  true  that  it  does  not  follow  the  word 
of  tlio  statute,  but  this  is  not  necessary.  The  certificate  shows  a  privy 
examination  of  the  wife — that  the  deed  was  freely  and  voluntarily  exe- 
cuted without  threats,  fear,  or  compulsion.  It  is  true  that  it  does  not 
state  that  it  was  executed  without  undue  influence;  but  it  is  difficult  to 
see  how  a  deed,  freely  and  vohintarily  executed,  without  fear,  threats, 
or  compulsion,  could  be  executed  under  undue  influence,  or  indeed  any 
extraneous  influence  at  all." 


§   5G7  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  776 

is  to  bring  to  tlie  attention  of  the  reader  some  of  the  cases 
in  which  the  question  lias  been  decided,  whether  particu- 
lar words  are  or  are  not  of  equivalent  import  with  other 
words,  and  leave  him  to  make  the  application  to  any  par- 
ticular case  he  may  have  under  investigation.  In  some 
courts  the  rnle  that  prevails  is  to  uphold  the  certificate 
by  all  possible  rules  of  construction.  In  others,  a  dispo- 
sition is  evinced  to  view  the  certificate  with  strictness, 
and  to  require  a  literal  compliance  with  every  require- 
ment of  the  statute.  This  fact  may  account  in  some 
measure  for  the  conflicting  decisions  that  are  found 
upon  the  various  topics  relating  to  acknowledgments, 
while  at  the  same  time  it  shows  the  difficulty  of  formula- 
ting general  rules. 

§  567.  Instances.  —  In  an  early  case  in  Maryland,  a 
certificate  of  acknowledgrrent  stated  that  the  wife  being 
examined  privately  and  out  of  the  hearing  of  her  hus- 
band, acknowledged  that  she  executed  the  same  "  of  her 
own  free  will,  and  not  through  any  threats  of  her  said 
husband,  or  fear  of  his  displeasure,"  but  omitted  the 
words  "  ill-usage."  It  was  held  that  this  omission  invali- 
dated the  deed/  But  it  was  held,  where  the  certificate 
stated  that  a  married  woman  acknowledged  the  deed 
"  freely,  without  any  fear,  threats,  or  compulsion  of  her 
husband,"  that  the  omission  of  the  word  "voluntarily" 
was  immaterial,  as  its  place  was  substantially  supplied 
by  the  other   expression.^     It    has    been    held    that    the 

^  Hawkins  v.  Burress,  1  Har.  &  J.  513.  Said  Chase,  C.  J:  "It  is  not 
for  the  court  to  say  what  the  words  of  the  law  ought  to  be,  they  must 
take  them  as  they  are.  The  court  thinlc  the  acknowledgment  certified 
is  defective,  and  does  not  divest  tlie  estate  of  tlie  feme  covert,  who  was 
in  this  cace  grantor.  They  think  the  words  'ill-usage  by'  are  material; 
therefore,  the  court  are  of  oi^inion,  and  so  direct  the  jury,  that  the 
acknowledgment  of  the  feme  covert  is  defective,  the  words  'ill-usage' 
not  being  inserted  in  the  certificate  of  the  justices  who  took  the  said 
acknowledgment;  and  that  the  said  deed  is  inoperative  to  pass  and 
transfer  her  interest  in  the  said  land." 

2  Lessee  of  Battin  i\  Bigelow,  1  Peters  C.  C.  452.  Where  the  statute 
requires  that  the  certificate  of  acknowledgment  of  a  deed  of  a  married 
woman  should  state  that  she  "acknowledged  such  instrument  to  be  her 


777  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  568 

words  "  without  undue  influence  or  compulsion  of  her 
husband,"  are  equivalent  in  signification  to  the  clause, 
"of  her  own  free  will,  without  undue  influence  or 
compulsion  of  her  husband."  Said  Harrison,  J:  '^  The 
wife  is  under  subjection  to  no  one  except  her  husband, 
and  her  freedom  from  the  constraint  and  control  of  all 
other  persons  is  presumed  and  need  not  be  shown,  and 
the  free  will  with  which  she  is  required  to  act  in  the  dis- 
posal of  her  real  estate  is  freedom  from  the  constraint  and 
undue  influence  of  her  husband."^ 

§  568.  Omission  of  the  word  "  fear" — Conflicting  de- 
cisions.— It  was  held  in  Alabama,  that  a  certificate  of  ac- 
knowledgment stating  that  a  married  woman  "signed, 
sealed,  and  delivered  the  above  instrument,  of  her  own 
free  will  and  accord,  and  without  any  force,  persuasion,  or 
threats  from  lier  said  husband,  and  for  the  express  purposes 
therein  stated,"  did  not  substantially  comply  with  the  stat- 
ute requiring  an  acknowledgment  that  she  signed,  sealed, 
and  delivered  the  deed  "as  her  voluntary  act  and  deed, 
freely,  without  any  /ear,  threats,  or  compulsion  of  her  said 
husband,"  for  the  reason  that  it  omitted  to  state  that  she 
acknowledged  the  deed  without  nnyfear.^  In  a  later  case  in 

act  and  deed,  and  declared  that  she  had  willingly  signed  the  same,"  a 
certificate  stating  that  "she  acknowledged  the  same  freely  and  willingly," 
does  not  comply  with  the  statute:  Hayden  v.  Moffatt,  74  Tex.  647;  15 
Am.  St.  Rep.  866. 

1  Tubbs  V.  Gaiewood,  26  Ark.  128.  The  statute  then  in  force  provid- 
ing for  the  authentication  of  the  certifcates  of  married  women  was  as 
follows:  "The  conveyance  of  any  real  estate  by  any  married  woman,  or 
tlie  relincjuishment  of  dower  in  any  of  her  husband's  real  estate,  t^liall 
be  autht-nticated,  and  the  title  passed  i)y  such  married  woman  volun- 
tarily appearing  before  the  proper  court  or  officer,  and  in  the  a]).«ence  of 
her  husband,  declaring  that  she  had,  of  her  own  free  will,  executed  the 
•deed  or  instrument  in  qnestion,  or  that  she  had  signed  and  sealed  the 
relinquishment  of  dower  for  the  purposes  therein  contained  and  set 
forth,  without  compulsion  or  undue  influence  of  her  husband." 

2  Boy  kin  v.  Rain,  28  Ala.  332;  65  Am.  Dec.  349.  Mr.  Justice  Rice 
said:  "It  was  ess:-ntial  that  she  should  acknowledge,  amongst  otiier 
things,  that  .^he  executed  the  mortgage  'without  an]i  fear.'  She  has  not 
acknowledged  this,  nor  anything  in  fiuhslance  the  ^ame.  It  will  not  do  to 
say  she  has  acknowledged  something  like  it.  ResemManre  is  not  iden- 
tity.    Fear  may  exist  on  the  part  of  the  wife,  'without  any  force,  per- 


§  oGS  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  778 

tlio  same  State,  this  certificate  of  acknowledgment  again 
came  before  the  same  tribunal.  There  was  at  this  time  a 
change  in  the  members  of  the  court,  and  a  majority  of  the 
court  said  they  were  not  satisfied  with  the  former  decision, 
but  would  adhere  to  it,  to  avoid  the  injury  that  would  ensue 
from  overruling  it/  Mr.  Justice  Stone,  with  whom  con- 
curred Mr.  Justice  R.  W.  Walker,  said,  speaking  of  the 
former  case  of  Boykin  v.  Rain:  "In  that  case  the  court 
held  that  the  certificate  was  not  a  substantial  compliance 
with  the  requirements  of  the  statute,  and  that  conse- 
quently the  title  did  not  pass.  The  case  was  decided  be- 
fore I  became  a  member  of  the  court;  but  an  application 
for  a  rehearing  was  submitted  to  the  court  after  my  elec- 
tion.     The    majority    overruled    the  application,    but   I 

suasion,  or  threats'  from  the  husband.  Her  acknowledgment,  that  she 
executed  the  deed  of  her  own  free  will  and  accord,  is  not  identical  in 
substance  with  an  acknowledgment  that  she  executed  it  freely,  without 
any  fear  of  her  husband.  Fear  may  exist,  and  often  does  exist,  in  a  de- 
gree so  moderate  as  not  to  destroy  the  freedom  of  the  will.  Thus,  *  by 
faith,  Noah,  being  warned  of  God  of  things  not  seen  as  yet,  moved  with 
fear,  prepared  an  ark  to  the  saving  of  his  house' :  Hebrews  xi.  7.  A 
deed,  executed  with  very  slight  fear,  by  a  person  sui  juris,  could  not 
for  that  cause  only  be  set  aside.  Fear  may  exist  to  a  degree  which 
amounts  to  undue  influence,  or  moral  coercion.  But  it  may  exist 
in  a  mucli  more  moderate  degree,  and  fall  far  short  of  undue  influence 
or  moral  coercion.  It  need  not  and  may  not  be  the  predominant 
motive.  If  the  words  contained  in  the  acknowledgment  by  a  married 
woman  of  the  execution  of  a  deed  purporting  to  convey  her  land,  do  not 
exclude  or  negative  the  idea,  that  at  tlie  time  she  executed  the  deed  any 
fear  of  her  husband  existed,  the  acknowledgment  is  insufficient,  without 
regard  to  the  degree  of  that  fear.  Her  acknowledgment  that  she  exe- 
cuted it  of  her  own  free  will  and  accord,  does  not  negative  the  existence 
of  fear  in  its  mildest  and  most  moderate  degree.  We  cannot  dispense 
with  any  requirement  of  the  law  (Bright  v.  Boyd,  1  fStory,  486;  1  Story's 
Eq.,  §§  97,  117) ;  and  as  the  acknowledgment  under  consideration  is  not 
such  as  was  prescribed,  the  mortgage  did  not  pass  the  estate  of  Mrs. 
Hazard  in  the  land:  Hollingsworth  v.  McDonald,  2  Har.  &  J.  230;  3 
Am,  Dec.  645;  Chauvin  v.  "Wagner,  18  Mo.  531;  Elliot  v.  Piersol,  1 
Peters,  338;  Gill  v.  Fauntleroy,  8  Mon.  B.  178;  Jourdan  v.  Jourdan,  9 
Serg.  &  R.  274;  11  Am.  Dec.  724;  Flanagan  v.  Young,  2  Har.  &  McH, 
88;  Martin  v.  Dwelly,6  Wend.  9;  21  Am.  Dec.  2-15;  Green  «.  Branton,  1 
Dev.  Eq.  500;  Bright  v.  Boyd,  1  Story,  487;  1  Story^s  Eq.  Juris.  §§  96, 
177 ;  Morceau  v.  Detchemendy,  18  Mo.  522 ;  Warren  v.  Brown,  25  Miss. 
66;  57  Am.  Dec.  191." 

1  Alabama  Life  Ins.  &  Trust  Co.  v.  Boykin,  38  Ala.  510. 


779  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  568 

did  not  concur  in  their  conclusion.     That  decision   has 
stood    for   several    years;    and    although   I   am  not  con- 
vinced  of  its   correctness,   I  think  more  evil  would  re- 
sult from  overturning  it  now  than  from   adhering  to  it. 
Few  deeds,  if  any,  will  be  found  so  entirely  like  the  one 
there  construed  as   to  constitute  that  case  a  dangerous 
precedent;  and  uniformity  of  decision  in  cases  affecting 
rights  of  property  is  one  of  the  benefits  that  result  from  a 
well  regulated   judicial  system.     I  adhere  to  that   decis- 
ion."    But  A.  J.  Walker,  C.  J.,  said:  "I  was  on  the  bench 
when   the   opinion    in    Boykin   v.   Rain^    was    delivered. 
That  opinion  has  the  full  sanction  of  my  judgment.    The 
argument  and  investigation  on  this  appeal  has  not  shaken, 
but  has  served  to  confirm,  the  conviction   previously  en- 
tertained.    I  hold  that  the  opinion  in  Boykin  v.  Rain  was 
right;    and   I  base  ray  assent  to   an  afhrmance  upon  the 
intrinsic  merits  of  the  questions  involved,  and  not  upon 
the  doctrine    of    stare    decisis."'^     These   decisions,   how- 
ever, are   in    direct   conflict   with   those  on   similar  cer- 
tificates of  acknowledgment  in  other  States.     In  Ohio,  the 
statute  required  that  if  the   married  woman,  upon  an  ex- 
amination  separate   and  apart  from   her  husband,  shall 
declare  "  that  she  doth  voluntarily,  and    of  her  own  free 
will  and  accord,  without  any  fear  or  coercion  of  her  hus- 
band,  did  and  doth   now  acknowledge  the    signing    and 
sealing  thereof,"  the  officer  shall  certify  the  facts.     The 
certificate  of  acknowledgment  stated    that    the   husband 
and  wife  appeared  before  the  officer,  and  "having   been 
made  acquainted  with  the  contents,  and  being  examined 
separate  and  apart,  the  wife  from  the  husband,  acknowl- 
edged the  above  indenture  to  be  their  voluntary  act  and 
deed,  for  the  uses  and  purposes  therein  mentioned,"  omit- 
ting the  word  "fear."     The  court  held  that  this  certificate 
substantially  complied  with  the  statute,  and  was  sufficient.* 
Speaking  of  the  objection  that  it  did  not  appear  from  the 
certificate   that  the  wife  acted  without  fear  and  coercion 

1  28  Ala.  332;  65  Am.  Dec.  349.        »  See  Motes  v.  Carter,  73  Ala.  553. 
•  Brown  v.  Farran,  3  Ohio,  140,  153. 


§    5()S  ACKNOWLEDGMENT  BY  MARRIED  WOMAN.  780 

of  the  husband,  Mr.  Justice  Burnet,  delivering  the  opin- 
ion of  the  court,  said:  "It  is  true  that  it  does  not  appear 
from  the  certificate  that  the  wife  acted  without  any  fear 
or  coercion  of  lier  husband.  It  is  true  that  those  words 
are  not  contained  in  the  certificate,  but  the  justice  cer- 
tifies that  she  acknowledged  the  deed  to  be  lier  voluntary 
act,  and,  if  voluntary,  it  could  not  have  been  done  under 
tlie  influence  of  fear  or  coercion.  The  term  '  voluntary' 
is  defined  to  be,  acting  without  compulsion,  acting  by 
choice,  willing,  of  one's  own  accord.  The  declaration  of 
the  wife,  then,  on  her  separate  examination,  excludes  the 
idea  of  fear  or  force.  If  she  executed  the  instrument 
willingly,  of  choice,  and  of  her  own  accord,  as  her  admis- 
sion before  the  justice  imports,  she  could  not  have  been 
under  the  influence  of  fear,  mucli  less  of  coercion.  An 
act  done  in  consequence  of  fear  cannot  be  done  willingly 
and  of  choice.  The  one  unavoidably  excludes  the  other, 
so  that  the  magistrate,  although  he  has  not  used  all  the 
words  given  in  the  statute,  has  taken  one  which  includes 
the  substance  of  all  the  others."  This  decision  has  been 
affirmed  in  later  cases. ^  In  New  Jersey  the  statute  pro- 
vided that  the  estate  of  a  married  woman  should  not  pass 

1  Ruffner  v.  McLenan,  16  Ohio,  639;  Dengenhart  v.  Cracraft,  36  Ohio 
St.  549,  573.  In  the  former  case  Hitchcock,  J.,  referring  to  Brown  v- 
Farran,  said  (p.  652) :  "  I  assented  to  the  principles  settled  in  this  case^ 
and  think  they  should  have  never  been  departed  from.  Any  other  decis- 
ion would  have  shaken  the  titles  to  many  millions  of  property,  which  had 
been  acquired  by  the  then  present  holders,  by  fair  and  bona  fide  purchase. 
A  contrary  decision,  it  is  true,  might  have  enabled  many  widows  to  re- 
claim property,  which  had  been  by  their  consent  sold  and  conveyed,  for 
an  ample  consideration,  or  it  might  have  enabled  them  to  enforce  claims 
for  dower  in  premises,  for  the  conveyance  of  which  they  had  joined 
with  tlieir  husband,  and  done  all  on  their  part  that  could  be  done  to 
make  such  conveyance  effective.  And  if  such  conveyances  are  not  to  be 
held  effective,  it  is  for  the  sole  reason  that  an  officer  whose  duty  it  was 
to  take  an  acknowledgment  of  the  conveyance  has  omitted  some  techni- 
cal formality  in  reducing  the  certificate  of  acknowledgment  to  writing. 
Another  reason  why  I  assented  to  the  principle  of  this  decision,  and  why 
I  am  still  willing  to  adhere  to  those  principles,  is  that  I  am  unwilling  to 
adopt  any  rule  of  construction  to  a  statute,  or  to  recognize  as  principle 
a  law,  which  will  encourage  any  portion  of  the  community,  whether  male 
or  female,  in  fraud  or  distionesty." 


781  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  568 

by  her  deed,  unless  on  a  private  examination  she  ac- 
knowledged that  she  "signed,  sealed,  and  delivered  the 
same  as  her  voluntary  act  and  deed,  freely,  without  any 
fear,  threats,  or  compulsion  of  her  husband,  and  a  certif- 
icate thereof  written  on  or  under  the  said  deed  or  convey- 
ance, and  signed  by  the  officer  before  whom  it  was  made." 
A  certificate  of  acknowledgment  stated  that  the  wife  be- 
ing "  examined,  separate  and  apart  from  her  husband 
did  acknowledge  that  she  signed,  sealed,  and  delivered 
the  same,  freely  and  voluntarily,  and  without  any  threats 
or  compulsion  from  her  said  husband."  The  court  held 
that  the  certificate  was  not  vitiated  by  the  omission  of  the 
word  "fear."  "The  censure  cast  on  this  acknowledg- 
ment," said  the  court,  "  for  the  want  of  the  word  'fear,' 
is  entirely  too  severe  a  criticism,  if  a  substantial  compli- 
ance satisfies  the  act.  It  is  very  possible,  as  remarked 
by  counsel  on  the  argument,  that  fear  may  exist  without 
threats,  but  it  is  not  very  easy  to  suppose  there  can  be 
fear  if  there  be  no  compulsion;  and  if  the  wife  executed 
the  deed  'freely  and  voluntarily,'  she  must  necessarily 
have  been  without  fear.  These  expressions  negative,  in 
the  most  unequivocal  and  exclusive  manner,  the  presence 
of  fear."  ' 

1  Den  V.  Geiger,  4  Halst.  (9  N.  J.  L.)  225,  233.  In  Dundas  v.  Hitch- 
cock, 12  How.  256,  2Gi},  Mr.  Justice  Grier  said:  "It  is  objected  also  that 
this  acknowledgment  is  not  in  the  very  words  of  the  statute.  In  the 
place  of  the  words,  'as  her  voluntary  act  and  deed,'  it  substitutes  the 
words,  'freely  and  of  her  own  accord.'  That  the  words  of  tlie  acknowl- 
edgment liave  the  same  meaning,  and  are  in  substance  the  same  with 
those  used  in  the  statute,  it  needs  no  argument  to  demonstrate ;  and 
that  such  an  acknowledgment  is  a  suflTicient  compliance  wdth  the  statute 
to  give  validity  to  the  deed  of  the  wife,  is  not  only  consonant  with  reason, 
but  as  the  cases  cited  by  counsel  show,  supported  by  very  numerous 
authorities.  The  act  requires  a  private  examination  of  the  wife  to 
ascertain  that  she  acts  freely  and  not  by  compulsion  of  her  husband, 
but,  it  prescriVjes  no  precise  form  of  wonls  to  be  used  in  the  certificate, 
nor  requires  that  it  should  contain  all  the  synonyms  used  in  the  statute 
to  express  the  meaning  of  the  legislature.  In  other  acts  of  the  same 
legislature,  where  a  precise  form  of  acknowlelgment  of  certain  deeds  ia 
prescribed,  it  is  provided  that  'any  certificate  of  probate  or  acknowledg- 
ment of  any  such  deed  shall  be  good  and  effectual  if  it  contain  the  sub- 
stance, whether  it  be  in  the  form   or  not,  of  that  set  forth  iu  the  lirst 


§§  5G9,  5G9  a    acknowledgment  by  married  women.    782 

§  569.  Comments.  —  There  can  be  little  doubt  but 
that  the  decisions  made  in  Alabama,  in  the  cases  cited, 
where  the  word  "fear"  was  omitted,  would  not  be  accepted 
as  authority  elsewhere.  Indeed,  the  very  court  that  ren- 
dered the  decision  was  convinced  of  its  incorrectness,  and 
only  adhered  to  it  on  the  doctrine  of  stars  decisis,  and 
because  its  overthrow  would  be  followed  by  disastrous 
results.  While  a  compliance  with  the  requirements  of 
the  statute  should  always  be  insisted  upon,  it  should  be  a 
substantial,  and  not  a  strictly  literal  compliance.  Regard 
should  be  had  to  the  intention  of  the  legislature,  and  if  it 
is  manifest  that  the  conveyance  of  the  married  woman 
has  been  executed  conformably  to  the  provisions  of  the 
statute,  and  this  fact  is  made  reasonably  to  appear, 
the  certiticate  should  not  be  set  aside,  merely  because 
there  is  a  possibility  that  a  state  of  fear  might  have 
existed  on  her  part,  which,  though  not  entirely  excluded 
by  the  words  employed,  yet  from  them  cannot  be  fairly 
implied/ 

§  569  a.      Unacknowleclg-ed    contract  to  convey  land. 

Where  it  is  essential  to  a  conveyance  by  a  married  woman 
that  it  should  be  acknowledged,  a  contract  to  convey  her 
separate  estate  is,  if  unacknowledged,  void.^  Though  the 
vendee  may  enter  into  possession  under  the  agreement 
and  pay  the  purchase  money,  she  may  recover  the  land 

section  of  the  act:  Clay's  Dig.  153.  The  legislature  have  thus  shown 
a  landalile  anxiety  to  hinder  a  construction  of  their  statutes,  which 
would  require  a  stringent  adherence  to  a  mere  form  of  words  witliout 
regard  to  their  meaning  or  substance,  and  make  the  validity  of  titles  to 
depend  on  the  verbal  accuracy  of  careless  scriveners." 

1  But  if  the  statute  requires  the  word  "fear"  to  be  inserted  in  the 
certificate,  that  word  or  one  of  (similar  import  must  be  used,  or  the  cer- 
tificate will  be  held  defective:  HoUingsworth  v.  McDonald,  2  Har.  &  J. 
230;  3  Am.  Dec.  545. 

«  Kirk  V.  Clark,  59  Pa.  St.  479 ;  Stivers  v.  Tucker,  126  Pa.  St.  74 ;  Rum- 
felt  V.  Clemens,  46  Pa.  vSt.  455;  Oolburn  v.  Kelly,  61  Pa.  St.  314;  Glidden 
V.  Strupler,  52  Pa.  St.  400;  Knowles  v.  McCamly,  10  Paige,  342;  Innis  v. 
Templeton,  95  Pa.  St.  262;  40  Am.  Rep.  643;  Kirkland  v.  Hepselgefer, 
2  Grant's  Cas.  84;  Miltenberger  v.  Croyle,  27  Pa.  St.  170;  Roseburgh  v. 
Sterling,  27  Pa.  St.  292;  Jackson  v.  Torrence,  83  Cal.  521. 


783  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.       §   569  a 

in  ejectment.  The  vendee  cannot  hold  possession  in 
equity  until  the  purchase  money  is  repaid.'  After  her 
death  her  heirs  can  likewise  maintain  ejectment  for  the 
land.^  She  is  not  estopped  by  acts  and  declarations  that 
would  bind  her  as  an  estoppel  if  she  were  a.  feme  sole}  As 
her  contract  to  convey  is  void,  she  cannot  ratify  it  by  acts, 
but  only  by  a  deed  executed  in  the  manner  prescribed  by 
statute.*     Even  though  a  contract  to  convey  may  not  be 

^  Rumfelt  V.  Clemens,  46  Pa.  St.  455.  Said  INIr.  Justice  Agnew  in  de- 
livering the  opinion  of  the  court:  "To  say  that  her  contract  of  sale  of 
her  interest  in  lands  made,  as  the  law  presumes  in  every  case,  under  the 
influence  of  her  husband,  unless  separately  examined,  and  giving  her 
free  consent  to  it,  is  good  in  equity,  unless  she  refunds  the  price,  is  to 
takt'  away  the  very  protection  the  acts  of  assembly  intended  to  provide. 
What  assurance  have  we  in  this,  or  in  any,  case  that  the  agreement  was 
not  procured  from  her  by  threats,  cruel  treatment,  or  a  course  of  petty 
annoyances,  amounting  to  an  absolute  constraint?  The  policy  of  the 
law,  in  this  respect,  is  founded  in  a  deep  insisht  of  the  marriage  rela- 
tion, exposing  the  timid,  shrinking  wife  to  the  storm  of  passion,  the 
torturing  reproach,  or  the  heart-breaking  unkindness  of  her  husband. 
If  we  hold  that  a  dei'ense  in  equity,  founded  on  possession  and  payment 
of  purchase  money,  may  be  set  up,  we  shall  clearly  be  bound  to  permit 
the  wife  to  reply  to  it,  by  showing  conjugal  restraints,  her  own  unwill- 
ingness, the  efforts  of  the  husband  to  compel,  and  the  unpleasant  tales 
of  family  iars!  Equity,  clearly,  would  not  execute  an  involuntary  con- 
tract, while  it  would  never  do  to  open  the  door  to  the  revelations  of 
domestic  discord.  Beyond  this,  how  shall  we  protect  the  wife  against 
those  private  acts  of  compulsion  unseen  by  the  public  eye,  when  no 
proof  can  be  brought  to  expose  the  unfeeling  conduct  of  the  husband  to 
the  liglit  of  truth?  Again,  if  we  hold  that  without  repayment  she  can 
recover  her  property,  sold  probably  under  the  pressure  of  importunity 
or  coercion,  with  an  intention  to  possess  himself  of  her  estate,  how  will 
she  ever  recover  after  a  dissolute  husband  has  squandered  the  proceeds, 
or  when  he  is  unable  or  refuses  to  refund  it?  She  cannot  repay  nor  con- 
trai-t  a  loan  to  repay  it.  Of  what  use  to  her  would  be  a  verdict  for  pos- 
session, subject  to  the  condition  of  rejiayment?  Thus,  she  is  left  exposed 
to  all  the  danger  and  hardship  of  her  situation  when  united  to  a  hus- 
band whose  unkindness,  rapacity,  misfortune,  or  vice  has  robbed  her  of 
her  estate.  There  is  no  safety  but  to  liold,  as  this  court  has  heretofore 
held,  that  the  agreement  of  the  wife  is  void  in  equity  as  well  as  law, 
unless  she  has  been  afforded  an  opportunity,  at  least,  to  unburthen  her 
griefs  in  the  ear  of  the  officer  of  the  law,  in  the  privacy  of  a  separate 
examination." 

»  Kirk  V.  Clark,  59  Pa.  i^t.  479. 

•  stivers  v.  Tucker,  12f;  Pa.  St.  74. 

*  Glidden  v.  Strupler,  52  Pa.  St.  400. 


§  570  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  784 

within  the  letter  of  the  statate  relating  to  conv^eyances  by 
married  women,  it  is  within  its  meaning  and  within  the 
policy  of  the  law  requiring  acknowledgments  by  married 
women.'  So  where  the  husband  and  wife  are  jointly  in- 
terested in  the  title,  and  a  contract  to  convey  is  signed, 
by  herself  and  husband,  which  she  fails  to  acknowledge, 
she  is  not  estopped  from  claiming  her  separate  interest 
in  the  property  because  she  fails  to  give  express  notice  to 
the  purchaser  that  she  claims  a  definite  interest,  or  to  in- 
form him  of  the  nature  and  extent  of  her  title.  Nor  can 
she  be  conclusively  presumed  to  know  the  law  that  such 
unacknowledged  contract  was  her  husband's  sole  contract. 
No  estoppel  can  be  raised  against  her  founded  on  such  a 
presumption,  because  the  question  of  her  knowledge  as  to 
whether  her  husband  claimed  by  the  contract  the  right  to 
convey  the  whole  property  without  her  consent  is  not  one 
of  legal  fiction,  but  depending  on  actual  knowledge,  mo- 
tives, and  intention.^  As  an  unacknowledged  executory 
contract  to  convey  her  separate  estate  cannot  be  enforced 
against  her,  neither  can  it  be  specifically  enforced  against 
the  vendee.  The  contract  is  not  voidable  at  her  option, 
hut  is  absolutely  void  and  is  to  be  treated  as  a,  nudum  pac- 
tum for  all  purposes.^ 

§  570.  Other  cases  in  which  certificates  have  heea 
construed. — Where  the  statute  required  the  certificate  to 
state  that  she  executed  the  deed  "freely,  voluntarily,  with- 
out compulsion,  constraint,  or  coercion  by  her  husband," 
a  certificate  omitting  these  words  and  simply  declaring 
that  she  had  acknowledged  the  deed,  and  "had  willingly 
signed,  sealed,  and  delivered  the  same,  and  that  she 
wished  not  to  retract  it,"  is  a  nullity.^  In  "West  Virginia, 
the  statute  requires  that  the  wife  shall  in  acknowledging 
her  deed  declare  that  "  she  had  willingly  executed  the 
same,  and  does  not  wish  to  retract  it."  A  certificate 
omitted  the  words  that  "  she  had  w^illingly  executed  the 
same,"  although  it  contained  the  phrase,  "  and  does  not 

1  Jackson  v.  Torrence,  83  Cal.  521.      *  Banbury  v.  Arnold,  91  Cal.  606. 
*  Jackson  v.  Torrence,  83  Cal.  521.      *  Henderson  v.  Rice,  1  Cold.  223. 


7S5  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  570 

wish  to  retract  it."  The  certificate,  on  account  of  this 
omission,  was  held  fatally  defective.^  But  a  certificate  of 
acknowledgment  which  shows  that  the  wife  acknowledged 
the  execution   of  the  deed  "without  any  fear,  threats,  or 

'  Leftwich  v.  Neal,  7  W.  Va.  569.  Paull,  J.,  said:  "  In  the  certificate 
now  under  consideration,  the  dechiration  of  tlie  wife  that  slie  had  will- 
injilv  executed  the  deed  is  entirelj'  omitted,  but  it  does  contain  the 
words,  '  that  she  does  not  wish  to  retract  it.'  The  certificate  recites  that 
she  declared  the  same  to  be  her  act,  and  this  is  required  by  the  statute ; 
but  this  by  no  means  impUes  a  compliance  with  the  additional  require- 
ment ot  the  statute  immediately  following,  to  wit:  'And  declared  that 
she  had  willingly  executed  the  same,  and  does  not  wish  to  retract  it.' 
If  authority  is  needed  on  this  proposition,  it  is  found  in  Blackburn's 
Heirs  v.  Pennington,  8  Mon.  B.  217.  There  the  certificate  showed  that 
the  grantors,  including  the  wife,  acknowledged  the  deed  to  be  their  act, 
and  that  she  was  privily  examined.  But  the  court  held  that  this  certifi- 
cate must  show  that  her  acknowledgment  was  voluntary,  and  that  it 
could  not  be  inferred  from  the  fact  of  her  privy  examination ;  in  other 
words,  a  certidcate  merely  that  a  deed  was  acknowledged  to  be  her  act 
did  not  prove  or  show  that  it  was  a  voluntary  acknowledgment.  And 
if,  under  our  statute,  the  fact  that  a  certificate  showing  that  a  feme  ac- 
knowledged a  deed  to  be  her  act  does  not  imply  a  compliance  with  the 
further  requirement  of  the  statute  that  she  willingly  executed  the  same ; 
that  these  are  in  fact  equivalent  expressions,  no  more,  we  think,  does 
the  fact  that  the  words,  'that  she  did  not  wish  to  retract  it,'  found  in 
the  certificate,  prove  or  show  that  she  willingly  executed  the  deed.  We 
do  not  think  that  it  can  be  necessarily  inferred,  because  a  feme  acknowl- 
edged that  she  doth  wish  to  retract  what  she  has  done,  that,  therefore, 
she  willingly  executed  the  deed.  The  execution  might  have  been  at  one 
period,  and  under  duress  or  coercion,  while  the  acknowledgment  that  she 
did  not  wish  to  retract  it  is  made  at  a  subsequent  time  and  under  differ- 
ent influences.  It  cannot  be  said,  at  least,  that  this  is  impossible.  But 
here  is  the  express  provision  of  the  statute  requiring  her  declaration  that 
she  willingly  executed  the  deed,  and  does  not  wish  to  retract  it,  to  be 
certified  and  recorded.  The  two  phrases  are  connected  by  the  copula- 
tive conjunction  and,  not  by  the  disjunctive  conjunction  or;  in  the  latter 
case  they  might  have  been  construed  as  equivalent  expressions,  and  the 
presence  of  the  last  might  be  construed  as  dispensing  with  that  of  the 
former.  But  the  legislature  has  expressly  inserted  them  both,  and  both, 
or  an  equivalent  for  both,  must  be  embraced  in  a  certificate  to  make  the 
deed  operative.  This,  we  thinli,  is  essential,  in  order  that  we  may  not, 
in  the  language  of  Judge  Tucker,  '  dispense  with  any  part  of  the  law,' 
and,  in  the  language  of  Judge  Alien,  '  there  is  good  reason  for  requiring 
a  substantial  compliance  with  all  the  requisites  of  the  statute.'  The 
legislature  does  not  seem  to  have  regarded  these  phrases  as  being  of  the 
same  import,  and  the  rules  of  interpretation  require  that  the  courts  shall 
give  effect  to  every  [lart  of  the  act.  It  has  been  contended  that  the  case 
i»EtD8,  Vol.  i.  —  i>o 


§  570  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  786 

compulsion"  on  the  part  of  the  husband,  upon  an  exami- 
nation separate  and  apart  from  liira,  is  not  rendered 
defective  by  the  omission  of  the  words,  "freely  and  volun- 
tarily," *  Where  a  statute  required  that  the  certificate 
should  show  that  she  had,  "of  her  own  free  will,  exe- 
cuted the  deed,  without  compulsion  or  undue  influence 
of  her  husband,"  it  is  a  substantial  compliance  to  state  in 
the  certificate  that  she  acknowledged  that  she  "signed 
said  deed  freely,  and  of  her  own  consent,  but  not  by  the 
persuasion  or  compulsion  of  her  said  husband,"  which 
latter  expression  is  equivalent  to  the  former.^  Where  the 
statute  requires  that  a  deed  shall  be  full^'  explained  to 
the  wife  by  the  officer  taking  her  acknowledgment,  a  cer- 
tificate of  acknowledgment  reciting  that  the  wife,  "being 
examined  by  me  privily  and  apart  from  her  husband, 
declared  that  she  fully  understood  the  contents  of  said 
deed,  and  that  she  signed  it  freely  and  without  fear  of  her 

of  Gill  and  Simpson  v.  Fauntleroy's  Heirs,  8  Mon.  B.  177,  authorizes  a 
different  effect  or  construction  to  the  language  used  in  this  certificate,  and 
decides  that  the  phrase,  '  and  does  not  wish  to  retract  it,'  is  equivalent  to 
the  language  'that  she  willingly  executed  the  same.'  We  observe  that 
we  have  not  seen  the  Kentucky  statute,  but  we  infer  from  the  lan- 
guage of  the  courts,  in  the  cases  we  have  examined,  that  their  statute 
does  not  contain  the  provision  in  the  same  form  as  ours,  requiring  the 
certificate  of  two  independent  facts  connected  together.  Moreover,  the 
certificate  in  this  case  of  Gill  and  Simpson  v.  Fauntleroy's  Heirs,  states 
other  matters  not  embraced  in  ours,  and  the  judgment  of  the  court  is 
founded,  seemingly,  upon  them  all.  The  court  say :  '  The  declaration  that 
she  did  not  wish  to  retract  is  equivalent  to  a  declaration  that  she  wished 
the  deed  to  stand  as  her  deed;  and  she  further  evinces  this  desire  by 
again  acknowledging  it,  and  consenting  that  it  might  be  recorded.  It 
seems  to  us  that  this  should  be  regarded  as  tantamount  to  a  declaration 
that  she  fully  acknowledged  the  deed.'  We  do  not  think  this  case,  upon 
a  careful  examination,  justifies  the  full  effect  which  has  been  claimed  for 
it,  and  cannot,  we  think,  be  allowed  to  override  an  express  requirement 
of  our  statute.  Upon  the  whole,  we  think  the  certificate  is  fatally  defect- 
ive in  the  particular  to  which  reference  has  been  made." 

1  Allen  V.  Denoir,  53  Miss.  321. 

*  Little  V.  Dodge,  32  Ark.  453.  See,  also,  for  further  cases,  Belcher  v. 
Weaver,  46  Tex.  293;  26  Am.  Rep.  267;  Dennis  v.  Tarpenny,  20  Barb. 
371;  Bernard  v.  Elder,  50  Miss.  336;  Stuart  v.  Dutton,  39  111.  91;  Gor- 
man V.  Stanton,  5  Mo.  App.  585;  Meriam  v.  Harsen,  2  Barb.  Ch.  232; 
Bartlett  v.  Fleming,  3  W.  Va.  163;  Solyer  v.  Romanet,  52  Tex.  562;  Lu- 
cas V.  Cobbs,  1  Dev.  &  B.  228;  Laird  v.  Scott,  5  Heisk.  314. 


787  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  571 

husband,  and  did  not  wish  to  retract  it,"  is  insuflBcient.^ 
So,  the  omission  of  the  words,  "and  for  the  purposes 
therein  expressed,"  has  been  held  to  render  the  certificate 
defective." 

§  571.  Substantial  compliance  with  the  statute  suffi- 
cient.— As  the  certificate  of  acknowledgment  of  a  mar- 
ried woman  is  generally  considered  an  essential  part  of 
her  deed,  it  is  evident  that  there  must  be  a  compliance 
with  all  the  statutory  provisions  on  the  subject.  But,  as 
is  apparent  from  what  has  been  said  in  previous  sections, 
it  is  not  necessary  that  there  should  be  a  literal  compli- 
ance with  these  provisions.  The  cases  that  have  already 
been  cited  are  authority  for  the  statement  that  slight  devia- 
tions from  the  language  of  the  statute  will  not  vitiate  an 
acknowledgment.  It  is  sufficient  if  the  requirements  of 
the  statute  have  been  substantially  observed.  Without 
entering  into  details,  we  may  quote  as  a  correct  exposition 
of  the  law  upon  this  subject  the  remarks  of  Mr.  Justice 
Breese:  "It  has  been  often  held  by  this  court  that  in  the 
acknowledgment  of  a  deed  by  a  married  woman,  it  is  suffi- 
cient if  it  appears  the  statute  has  been  substantially 
observed  and  followed.  A  mere  literal  compliance  is  not 
demanded  nor  expected.  The  great  object  which  the  leg- 
islature seems  to  have  had  in  view  in  prescribing  the 
mode  by  which  a  married  woman  may  be  divested  of  her 
interest  in  land,  seems  to  be  that  she  should  not  be  im- 
posed upon  or  coerced  by  her  husband,  and  to  protect  her 
from  imposition  or  coercion,  the  officer  shall  examine  her 
separate  and  apart  from  her  husband,  that  he  sliall  ex- 
plain to  her  the  nature  of  the  act  she  is  about  to  consum- 
mate, and  this,  by  explaining  to  her  the  contents  of  the 
deed  she  has  executed,  and,  if  it  is  her  own  estate  slie  is 
conveying,  that  she  may  retract  if  she  desires  to  do  so, 
for  any  cause  then  operating  upon  her.  It  is  the  design 
of  the  law  she  should  be  informed  of  her  true  position 
R.   H.   P.   VARfEL 

>  Lan,HffTroWWB'rvH,T6t*W.  296. 
*  Curriiyjj^^r^^l^  Ua^^i^a.),  138. 


§  572  ACKNOWLEDQMENT  BY  MARRIED  WOMEN.  788 

and  of  the  real  nature  of  her  interest  in  the  land,  and  this 
is  presumed  to  be  done  by  the  officer,  by  his  certificate 
that  he  fully  explained  to  her  the  contents  of  the  deed. 
Wlien  all  these  appear  from  the  certificate,  slight  depart- 
ures from  the  words  of  the  law  will  not  prejudice;  so 
long  as  the  substance  is  preserved,  mere  technical  objec- 
tions will  not  be  favored."^  Where  the  certificate  states 
that  the  wife  acknowledged  that  she  "signed"  the  deed, 
this  is  a  substantial  compliance  with  the  statute  using 
the  additional  words  ''sealed  and  delivered. "'^  Where  the 
statute  requires  that  the  acknowledgment  shall  be  "on 
examination  apart  from  and  without  the  hearing  of  her 
husband,"  and  provides  that  every  certificate  which  sub- 
stantially conforms  to  the  requirements  of  the  statute 
shall  be  valid,  a  certificate  which  states  that  the  acknowl- 
edgment was  made  "on  a  private  examination  separate 
and  apart  from  her  husband,"  substantially  complies 
with  the  statute.^ 

§  572.  Surplusag-e. — A  certificate  of  acknowledgment 
that  complies  with  all  the  requirements  of  the  statute  is 
not  invalidated  by  the  fact  that  it  states  more  than  is 
necessary.  This  principle  is  frequently  illustrated  in 
cases  where  a  clause  is  added  relinquishing  the  right  of 
dower  when  no  such  statement  is  necessary.  It  may  not 
be  inappropriate  to  give  as  a  pertinent  illustration  of  this 

1  In  Stuart  v.  Dutton,  39  111.  91,  93.  See,  also,  Muii-  v.  Galloway,  61 
Cal.  498;  Kottman  v.  Ayer,  1  Strob.  552;  Thayer  v.  Torrey,  37  N.  J.  L. 
339;  Reynolds  v.  Kingsbury,  15  Iowa,  238;  Merriam  v.  Harsen.  2  Barb. 
Ch.  232;  Young  v.  State,  7  Gill  &  J.  253 ;  Langhorne  v.  Hobson,  4  Leigh, 
224;  Owen  v.  Norris,  5  Blackf.  479;  Allen  v.  Lenoir,  53  Miss.  321;  Johns 
V.  Reardon,  11  Md.  465;  Hughes  v.  Lane,  11  111.  123;  50  Am.  Dec.  436; 
Hollingsworth  v.  McDonald,  2  Har.  &  J.  230;  3  Am.  Dec.  545;  Mclntire 
V.  Ward,  5  Binn.  298;  6  Am.  Dec.  417;  Coombes  v.  Thomas,  57  Tex.  321; 
Gordon  v.  Leech,  81  Ky.  229.  Where  the  acknowledgment  of  husband 
and  wife  were  certified  in  the  same  certificate,  the  certificate  relating  to 
the  wife  may  be  aided  by  language  contained  in  the  certificate  relating  to 
their  joint  acknowledgment:  Soyler  v.  Eomanet,  52  Tex.  562;  Donahue 
V.  Mills,  41  Ark.  421.  But  see,  in  Illinois,  Merritt  v.  Yates,  71  111.  636; 
22  Am.  Rep.  128;  Hartshorn  v.  Dawson,  79  111.  108. 

*  Mullins  V.  Weaver,  57  Tex.  5. 

8  Muir  V.  Galloway,  61  Cal.  498. 


789  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  572 

principle  a  case  which  occurred  in  Mississippi,  where  the 
certificate  of  acknowledgment  after  stating  that  the  hus- 
band and  wife  acknowledged  that  they  signed,  sealed,  and 
delivered  the  deed  as  their  act  and  deed,  proceeded  to 
state  that  the  wife  "did,  on  a  private  examination  made 
of  her  apart  from  her  husband,  acknowledge  that  she 
signed,  sealed,  and  delivered  the  same  as  her  voluntary- 
act  and  deed,  and  without  any  fear,  threats,  or  compulsion 
of  her  said  husband,  and  in  bar  of  her  dower."  The  prop- 
erty conveyed  was  the  separate  property  of  the  wife,  and, 
tlierefore,  it  was  unnecessary  to  say  anything  about  dower. 
It  was  urged  before  the  court  that  these  last  words,  "and  in 
bar  of  her  dower,"  should  be  understood  as  qualifying  all 
that  preceded  them  in  the  certificate  of  acknowledgment, 
and  that  the  effect  of  the  whole  acknowledgment  was 
but  a  relinquishment  of  the  wife's  right  of  dower.  But 
the  court  held  that  this  clause  was  surplusage,  and  did  not 
invalidate  the  certificate.  In  the  words  of  the  court: 
"The  language  of  the  latter  clause  must  be  taken  with 
reference  to  the  preceding  clause,  and  also  with  reference 
to  the  interest  intended  to  be  conveyed,  as  shown  by  Mie 
deed  itself;  and,  so  considered,  it  is  not  justly  susceptible 
of  any  other  construction  than  that,  on  the  private  exam- 
ination, she  acknowledged  that  she  executed  the  instru- 
ment as  her  act  and  deed,  for  the  uses  and  purposes 
therein  named,  which  appear  by  the  deed  to  be  a  convey- 
ance of  the  property  as  belonging  to  her.  As  the  property 
was  her  separate  estate,  she,  therefore,  acknowledged  that 
she  conveyed  it  as  such,  according  to  the  purport  of  the 
deed.  This  was  manifestly  the  object  which  the  parties 
intended  to  effect,  and  the  words  of  the  acknowledgment 
are  sufficient  for  the  purpose.  The  superadded  words 
'and  in  bar  of  her  dower'  do  not  restrict  or  impair  the 
acknowledgment  already  made,  but  must  be  understood 
as  intended  to  release  her  right  of  dower,  in  addition  to 
the  estate  already  conveyed.  Tiiis  is  the  fair  construction 
of  the  language  used,  and  these  concluding  words  were, 
doubtless,  used  under  the  impression  that  her  right  of 


§  573  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  790 

dower  had  to  be  released  in  terms,  in  addition  to  her  ac- 
knowledgment that  she  conveyed  her  separate  estate. 
But  being  useless,  under  the  circumstances  in  which  the 
title  to  the  property  stood,  and  merely  in  addition  to  what 
was  previously  stated,  they  are  mere  surplusage,  and  can- 
not limit  or  affect  her  acknowledgment  as  to  the  convey- 
ance of  her  sole  and  separate  estate,  which  was  complete 
without  them."^  Where  the  statute  requires  that  an  ex- 
press relinquishment  of  dower  shall  be  inserted  in  the 
certificate  of  acknowledgment  of  a  married  woman  to  bar 
her  right  of  dower,  to  give  the  deed  this  effect  the  statute 
must  be  complied  with.  The  statement  that  she  acknowl- 
edged the  execution  of  the  deed  is  not  sufficient.^ 

§  573.  Community  property. — In  California,  all  prop- 
erty of  either  husband  or  wife,  owned  before  marriage  or 
acquired  afterward  by  gift,  bequest,  devise,  or  descent, 
with  the  rents,  issues,  and  profits,  is  the  separate  property 
of  such  husband  or  wife.  All  other  property  acquired 
after  marriage  by  either  husband  or  wife,  or  both,  is 
community  property,  of  which  the  husband  has  the  man- 
agement and  control  with  the  same  absolute  power  of 
disposition  that  he  possesses  of  his  own  separate  estate.^ 
The  presumption  is  that  all  property  acquired  by  either 
husband  or  wife  after  marriage  is  community  property, 
and  this  presumption  can  only  be  overcome  by  evidence 
establishing  its  character  as  separate  property.'*  Accord- 
ingly, though  the  property  may  stand  in  the  name  of  the 

^  Stone  V.  Montgomery,  35  Miss.  83,  106.  See,  also,  Barker  v.  Circle, 
60  Mo.  258 ;  Chauvin  v.  Wagner,  18  Mo.  531  ;  Perkins  v.  Carter,  20  Mo. 
465;  Cliester  r.  Rumsey,  26  111.  97;  Stuart  v.  Dutton,  39  111.  91;  Moore 
V.  Titman,  33  111.  358;  Delassus  v.  Poston,  19  Mo.  425  ;  Hartley  v.  Ferrel, 
9  Fla.  374.  But  see  Lane  v.  Dolick,  6  McLean,  200;  McDaniel  v.  Priest, 
12  Mo.  544. 

2  Thomas  v.  Meier,  18  Mo.  573;  Lindley  v.  Smith,  46  111.  524;  Becker 
V.  Quigg,  54  111.  390. 

^  See  Cal.  Civil  Code,  §§  162,  163,  164,  172.     See  vol.  2,  §§  865-880. 

*  Smith  V.  Smith,  12  Cal.  216;  73  Am.  Dec.  533;  Burton  v.  Lies,  21 
Cal.  87;  Althof  v.  Conheim,  38  Cal.  230;  99  Am.  Dec.  363;  Meyer  v. 
Kinzer,  12  Cal.  247;  73  Am.  Dec.  538;  Ramsdell  v.  Fuller,  28  Cal.  37;  87 
Am.  Dec.  103;  Adams  v.  Knowlton,  22  Cal.  283;  Eiley  v.  Pehl,  23  Cal. 


791  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  574 

wife,  yet,  if  acquired  after  marriage,  it  may  be,  and  will 
be  presumed  to  be,  community  property,  of  which  the 
husband  has  the  power  of  disposition.  If  the  wife  should 
join  in  the  deed  with  her  husband,  of  property  standing 
in  her  name,  but  which  is  community  property,  the  fact 
that  the  certificate  of  acknowledgment  is  defective,  cannot 
affect  the  validity  of  the  conveyance,  for  the  reason 
that  her  signature  is  unnecessary.  "As  the  property 
belonged  to  the  community,  it  was  subject  to  the  disposi- 
tion of  the  husband.  He  was  possessed  of  the  same 
absolute  power  over  it  as  over  his  separate  estate.  He 
could  sell  it  without  the  concurrence  or  consent  of  his 
wife.  It  is  of  no  moment,  therefore,  that  the  deed  to  the 
plaintiff'  was  recorded  with  the  defective  certificate  of  her 
acknowledgment.  Her  signature  to  the  instrument  was 
unnecessary,  for  it  could  add  nothing  to  the  validity  or 
completeness  of  the  transfer.  The  entire  estate  passed 
upon  the  execution  of  the  deed  by  the  husband  alone. "^ 

§  574.      Married    woinan  acting*    as  a  feme  sole. — As 

it  is  an  established  rule  that  a  married  woman  cannot  be 
divested  of  her  title  to  land  by  an  estoppel  inpais,  the  ques- 
tion of  the  effect  of  her  deed,  executed  and  acknowledged  by 
her  in  the  character  of  o.  feme  sole,  when  she  is  in  realit}'  a 
married  woman,  is  one  that  is  not  free  from  difficulty. 
Where  she  is  guilty  of  no  positive,  express  misrepresen- 
tation, and  the  party  with  whom  she  is  dealing  has  the 
means  of  ascertaining  her  status,  it  is  difficult  to  see  what 
element  of  fraud  or  deceit  enters  into  the  transaction 
to  bind  her  by  her  act.  Still  it  is  manifestly  unjust 
where  she  holds  herself  out  as  an  unmarried  woman  to 
allow  her  to  claim,  against  an  innocent  purchaser,  that  a 

70;  Tfck  V.  Brummagim,  31  Cal.  440;  89  Am.  Dec.  195;  Nott  v.  Smith, 
16  Cal.  533;  Lewis  ?;.  Lewis,  18  Cal.  654;  Parry  v.  Kelly,  52  Cal.  334; 
Eslinger  v.  Esiinger,  47  Cal.  62. 

'  Pixley  V.  Hui,'ginH,  15  Cal.  127,  131,  per  Fiold,  0.  J.  See  Landers  v. 
Bolton,  26  Cal.  420;  Toiu  v.  layers.  64  Tex.  339:  fcjtepliena  v.  Mathews, 
69  Tex.  341. 


§  574  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  792 

deed  acknowledged  by  her  in  the  capacity  of  a  feme  sole 
is  void  because  she,  at  the  time  of  its  execution,  was  mar- 
ried. This  latter  view  is  the  one  that  has  found  favor 
with  the  courts  as  being  best  supported  by  reason.  Ac- 
cordingly, where  a  decree  of  divorce  is  obtained  by  a  mar- 
ried woman,  whicii  is  void,  but  she  takes  her  maiden 
name,  acts  as  and  represents  herself  for  a  long  period  of 
time  to  be  a  married  woman,  and  lives  apart  from  her 
husband,  a  deed  of  her  separate  real  estate,  acknowledged 
by  her  as  an  unmarried  woman,  it  has  been  decided,  is 
sufficient  to  pass  her  title.'  So  where  a  married  woman 
left  her  husband  in  England,  and  formed  a  meretricious 
union  in  California,  and  for  fifteen  years  lived  witli  her 
paramour,  and  executed  to  him  deeds  of  certain  lots  of  land, 
to  which  deeds  the  certificate  of  acknowledgment  was  in 
the  form  of  that  of  ix  feme  sole,  and  not  in  that  prescribed 
by  the  statute  for  the  acknowledgment  of  deeds  executed 
by  married  women,  it  was  held  that  she  had  estopped 
herself  by  her  conduct  from  calling  to  her  aid  the  statutes 
relating  to  the  acknowledgment  of  deeds  by  married 
woiuen,  for  the  purpose    of  defeating  her  deeds,  in    an 


^  Eeis  V.  Lawrence,  63  Cal.  129;  49  Am.  Rep.  83.  Said  Ross,  J.,  in 
delivering  the  opinion  of  the  majority  of  the  court:  '"Of  course,  under 
such  circumstances,  the  reason  for  the  rule  that  requires,  in  cases  of  mar- 
ried women,  the  certificate  of  acknowledgment  to  recite  an  examination 
without  the  hearing  of  her  husband,  does  not  exist.  At  least,  as  early 
as  July,  1872,  the  defendant  Fanny  lived  apart  from  and  independent  of 
her  husband.  Later  on,  in  1873,  she  resumed  her  maiden  name,  and 
thence  hitherto  acted  and  represented  herself  as  a  single  woman.  In 
that  character,  she  executed  the  instruments  in  question,  and  in  that 
character,  in  our  opinion,  a  court  of  equity  ought  to  regard  her  in  the 
construction  of  them.  As  giving  support  to  these  views,  see  Richeson 
V.  Simmons,  47  Mo.  20;  Rosenthal  v-  Mayhugli,  33  Ohio  St.  155;  Patter- 
son t).  Lawrence,  90  111.  174;  32  Am.  Rep.  22."  Justices  McKee  and 
Thornton  dissented.  See,  also.  Hector  v.  Knox,  63  Tex.  613;  Clements 
V.  Ewing,  71  Tex.  370;  Wright  v.  Hays,  10  Tex.  130;  Cheek  v.  Bellows, 
17  Tex.  613;  67  Am.  Dec.  686;  FuUerton  v.  Doyle,  18  Tex.  4;  Kelley  v. 
Whitmore,  41  Tex.  648;  Delafield  v.  Brady,  108  N.  Y.  524;  Piper  v. 
May,  51  Ind.  283.  But  she  cannot  convey  asa/eme  sole,  because  of  the 
fact  of  her  husband's  insanity :  Heidenheimer  v.  Thomas,  63  Tex. 
287. 


793  ACKNOWLEDGMENT  BY  MARRIED  WOMEN.  §  575 

action  to    quiet  title/     If  ejectment  may  be  maintained, 
the  purchase  money  should  be  first  tendered  back.^ 

§  575.  Comments. — In  both  of  these  cases  dissenting 
opinions  were  filed,  and  it  seems  to  us  that  these,  consid- 
ered with  reference  to  the  language  of  the  statutes,  are 
best  supported  by  legal  reasoning.  It,  indeed,  is  hard  to 
say  that  a  conveyance  of  a  woman  representing  herself 
to  be  unmarried,  is  void,  because  she  is  in  fact  married, 
although  the  grantee  may  not  have  the  slightest  knowl- 
edge or  intimation  of  this  fact.  Yet  the  law  has  seen  fit 
to  say  that  a  married  woman  shall  convey  her  property 
in  one  way  and  in  no  other.  The  only  question  that 
should  be  solved  is,  is  she  a  married  woman?  When  her 
status  is  determined,  her  deed  to  have  effect  must,  it 
seems  to  us,  under  the  statute,  be  acknowledged  in  the 
manner  prescribed.  Without  this  acknowledgment,  it  is 
a  nullity.  While  it  is  manifestly  unjust  to  deprive  a 
man  acting  in  good  faith  of  his  property  by  an  arbitrary 
rule  of  law,  yet  if  that  is  the  law,  the  hardship  of  an  in- 
dividual case  ought  not  to  be  considered.  It,  perhaps,  is 
only  a  question  of  time  when  all  restrictions  on  the  power 
of  married  women  to  convey  will  be  removed.  Slie  should 
be  allowed  to  convey  as  if  she  were  unmarried.  But  un- 
til these  restrictive  statutes  have  been  repealed,  they 
should  be  upheld  and  enforced.^ 

^  Hand  v.  Hand,  68  Cal.  135;  58  Am.  Rep.  5.  The  same  conclusion 
was  reached  and  these  decisions  approved  in  Ramboz  v,  Stowell,  103 
Cal.  588.  Ross,  J.,  concurring,  said:  "1  agree  that  the  plaintiff  should 
be  regarded  as  a  single  woman.  The  property  to  which  she  asserts  title 
was  acquired  by  her  in  this  State.  Her  husband  has  never  been  williin 
the  United  States.  For  twenty  odd  years  she  has  repudiated  her  mar- 
ital relations,  and  conducted  herself  without  regard  to  them.  Under 
such  circumstances  to  permit  her  to  fall  back  upon  them,  and  render 
void  her  deed  on  the  ground  that  the  certificate  of  the  notary  does  not 
rc'cite  that  she  was  examined  'separate  and  apart'  from  her  husband, 
with  whom  she  has  held  no  relations  for  more  than  twenty  years,  and 
who  has  never  been  in  tliis  country,  seems  to  me  to  be  beyond  all  reason." 
Mr.  Justice  McKee  filed  a  dissenting  opinion. 

^  Banner  v.  Berthold,  11  Mo.  App.  351. 

•  See  in  this  connection  Rhea  v.  Rhenner,  1  Pet.  105. 


CHAPTER   XXI. 

REGISTRY  LAWS  OF  THE  SEVERAL  STATES. 


§  576. 

Statutory  provisions. 

§  577. 

Alabama. 

§  578. 

Arizona  Territory. 

§  579. 

Arliansas. 

§  5S0. 

California. 

§  5S1. 

Colorado. 

§  582. 

'Connecticut, 

§  oS3. 

Dakota  North  and  South. 

§  584. 

Delaware, 

§  585. 

District  of  Columbia. 

§  586. 

Florida, 

§  587. 

Georgia, 

§  588. 

Idaho. 

§  589. 

Illmo'is. 

§  5S9a 

.  Indian  Territory, 

§  590. 

Indiana. 

§  591. 

Iowa, 

§  592. 

Kansas. 

§  593. 

Kentucky, 

§  594. 

Louisiana. 

§  595. 

Maine. 

§  596. 

Maryland. 

§  597. 

Massachusetts. 

§  598. 

Michigan. 

§  599. 

Minnesota. 

§  600. 

Mississippi. 

§  601. 

Missouri. 

§  602. 

Montana. 

§  603. 

N  eh  r  a  ska. 

§  604. 

Nevada. 

§  605. 

New  Hampshire, 

§  606. 

New  Jersey. 

§  607. 

New  Mexico  Territory. 

§  608. 

New  York. 

§  609. 

North  'Carolina, 

§  609a 

.  North  Dakota, 

§  610. 

Ohio. 

§  611. 

Oregon. 

§  611a, 

.  Oklahoma  Territory. 

§  612. 

Pennsylvania. 

§  613. 

Rhode  Island. 

(794) 

795  REGISTRY    LAWS.  §  576 

§  614.  South  Carolina. 
§  614  a.  South  Dakota. 

§  615.  Tennessee. 

§  616.  Texas. 

§  617.  Utah. 

§  (il8.  A^ermont. 

§  619.  Virginia. 

§  620.  Washington. 

§  621.  West  Virginia. 

§  622.  Wisconsin. 

§  623.  Wyoming. 

§  624.  Effect  of  statutes  giving  time  to  record  deed — Valid  from  de- 
livery. 

§  625.  Protection  of  grantee. 


§  576.  Statutory  provisions. — The  statutes  of  the  dif- 
ferent States  are  not  uniform  as  to  the  time  prescribed 
within  which  conveN'ances  should  be  or  are  required  to 
be  recorded.  In  some  of  the  States,  it  is  provided  by 
statute  that  the  registration  of  a  deed  is  effective  as  con- 
structive notice  from  the  time  only  when  it  is  filed  for 
record.  In  other  States,  the  statutes  allow  a  purchaser  a 
specified  time  after  the  execution  of  the  deed  in  which  to 
have  it  recorded.  The  subject  of  registration  is  an  im- 
portant one,  and  many  decisions  are  based  alone  upon 
the  particular  language  of  the  statute.  For  the  purpose 
of  enabling  the  reader  to  determine  whether  a  decision  is 
founded  upon  the  peculiar  phraseology,  or  some  special 
provision  of  a  statute  of  a  particular  State,  as  well  as  to 
furnish  him  with  an  idea  of  the  reason  for  the  conflict 
among  the  decisions  that  will  frequently  be  found  in  the 
various  questions  arising  from  the  registry  laws,  it  has 
been  considered  advisable  to  give  an  abstract  of  the  stat- 
utes of  the  different  States  relative  to  the  registration  of 
deeds.  With  the  exceptions  above  noted,  however,  the 
stntutes  show  a  general  uniformity.  All  have  registry 
laws  and  the  tendency  is  toward  uniformity.  Recent 
legislation  tends  to  remove  the  necessity  for  a  married 
woman  acknowledging  a  deed  in  a  manner  diflerent  from 
that  required  of  an  unmarried  woman.  It  is  not  our  pur- 
pose, in  the  following  sections,  to  give  all  the  statutory 


§  577  KEGISTRY    LAWS.  796 

provisions  complete,  as  such  a  compilation  would  serve  no 
useful  purpose.  Our  object  is  simply  to  show  the  salient 
points  of  the  statutes  which  the  courts  have  examined 
and  construed  when  deciding  cases  involving  the  registry 
laws.  In  some  instances  a  statute  has  been  given  ver- 
batim, although  changes  may  have  since  been  made,  when 
it  would  seem  that  decisions  were  based  upon  the  particu- 
lar lansuage  used.  In  such  case  the  date  is  given  v/hen 
the  statute  was  in  force.  Changes  that  have  been  made 
are  generally  to  abolish  the  provisions  giving  a  specified 
time  to  record  conveyances.  But,  inasmuch  as  many  de- 
cisions have  been  based  upon  former  statutes,  it  is  im- 
portant to  know  their  substance,  and  hence  it  has  been 
deemed  advisable  to  give  them  as  they  were  when  de- 
cisions founded  upon  them  might  seem  to  be  in  conflict 
with  the  decisions  of  other  States. 

§  577.  Alabama. — Unless  recorded  within  a  specified 
time  from  their  date,  all  conveyances  of  unconditional  es- 
tates and  mortgages,  or  instruments  in  the  nature  of  mort- 
gages  of  real  property,  to  secure  any  debt  created  at  their 
date,  formerly  were  void  as  against  purchasers  for  a  valu- 
able consideration,  mortgagees,  and  judgment  creditors 
without  notice.^  But  all  other  conveyances  of  real  prop- 
erty, mortgages,  or  deeds  of  trust,  to  secure  any  debts  other 
than  those  above  enumerated,  are,  as  to  purchasers  for  a 
valuable  consideration,  mortgagees,  and  judgment  cred- 
itors without  notice,  inoperative  and  void,  unless  recorded 
before  tlie  accrual  of  the  rights  of  such  persons.  But  all 
such  conveyances  are  perfectly  valid  without  registration 
as  between  the  parties  themselves,  and  against  creditors 
whose  claims  have  not  been  put  into  judgments.  Con- 
veyances must  be  recorded  in  the  county  in  which  the 
land  lies,  in  the  office  of  the  judge  of  probate.  The  con- 
veyance is  operative  as  a  record  from  the  day  on  which 

1  Rev.  Code,  §§  1810-1812.  See  Alabama  Civil  Code,  §  2168,  before 
revision  of  1886.  But  a  change  is  now  made  by  omission  of  specified 
time  from  Code. 


797  REGISTRY  LAWS.  §§  578, 579 

it  is  delivered  to  the  judge.  And  the  recording  in  the 
proper  office  of  any  deed  or  conveyance  of  property  which 
may  be  legally  admitted  to  record,  operates  as  notice  of 
such  conveyance,  without  any  acknowledgment  or  probate.' 

§  578.  Arizoua. — Conveyances  are  valid  betwee- .  the 
parties  without  registration,  and  are  required  to  I  -i  re- 
corded in  the  county  in  which  the  land  is  situated.  The 
record,  when  dul\'  made,  imparts  notice  to  all  of  the  con- 
tents of  the  deed  from  the  time  it  is  delivered  to  the  record- 
er, and  all  subsequent  purchasers  and  mortgagees  are 
considered  purchasers  with  notice." 

§  579.  Arkansas. — Every  deed  or  instrument  affecting 
the  title  in  law  or  in  equity  to  any  property  which  is  en- 
titled to  record,  is  constructive  notice  to  all  persons  from 
the  time  such  conveyance  is  filed  for  record  in  the  office 
of  the  recorder  of  the  proper  county.  The  recorder  is  re- 
quired to  indorse  on  the  instrument  the  precise  time  when 
it  was  filed  for  record.^  No  conveyance  is  good  or  valid 
against  subsequent  purchasers  for  valuable  consideration, 
without  actual  notice,  or  against  any  creditor  of  the  grantor, 
obtaining  a  judgment  or  decree,  which  may  be  a  lien  upon 
the  real  estate  described  in  such  conveyance,  unless  such 
conveyance  shall  be  filed,  after  acknowledgment,  for  record 
in  the  recorder's  office  of  the  county  where  such  land  is 
situated.*  A  mortgage  is  a  lien  on  the  mortgaged  prop, 
erty  from  the  time  the  same  is  filed  in  the  recorder's 
otfice,  and  not  before.^ 

1  See  Gray's  Administrators  v.  Cruise,  36  Ala.  559;  Coster  v.  Bank  of 
Georgia,  24  Aia.  37;  Joidan  v.  Mead,  12  Ala.  247;  Wyatt  v.  Stewa-t,  34 
Ala.  716 ;  De  Vendal  ?•.  Walme,  25  Ala.  272 ;  Wallis  v.  Rhea,  10  Ala.  4:)1 ; 
Boyd  V.  Beck,  29  Ala.  703 ;  Bearing  v.  Watkins,  10  Ala.  20 ;  Ohio  Life  Ins. 
&  Trust  Co.  V.  Ledyard,  8  Ala.  866;  Andrews  v.  Burns,  11  Ala.  691 ;  Cen- 
ter V.  1'.  &  M.  Bank,  22  Ala.  473;  Daniel  v.  Sorrells,  9  Ala.  436;  Smith  v. 
Branch  Bank  of  Mobile,  21  Ala.  125;  Rev.  Code,  §  1810,  et  seq;  3  Rev. 
Stats.,  ^§  2601,  2602. 

»  Rev.  Stats.  1887 ;  Comp.  Laws  1877,  §§  2268,  2269. 

»  §6. 

♦  See  Hamilton  v.  Foulkcs,  16  Ark.  340;  Byers  v.  Englos,  16  Ark.  543, 

"  Dig.  of  stats.  §  656,  et  seq.  See  Jacoway  v.  Gault,  20  Ark.  190;  73 
Am.  Dlc.  494.     See,  also  Sandels  &  Hill's  Dig.  1894. 


§   580  REGISTRY    LAWS.  798 

§  580.  California. — A  deed  is  conclusive  against  the 
grantor  and  all  persons  subsequently  claiming  under  him, 
except  purchasers  or  encumbrancers  acquiring,  in  good 
faith  and  for  a  valuable  consideration,  a  title  or  lien  by  an 
instrument  which  is  first  duly  recorded.^  A  conveyance  is 
constructive  notice  of  the  contents  to  subsequent  purchas- 
ers and  mortgagees  from  the  time  it  is  filed  with  the  re- 
corder for  record.^  A  deed  is  void  against  subsequent 
purchasers  or  mortgagees  of  the  same  property,  or  any 
part  thereof,  in  good  faith  and  for  value,  whose  convey- 
ances are  first  duly  recorded.^  Unrecorded  instruments, 
however,  are  valid  between  the  parties  and  those  having 
notice.^  And  powers  of  attorney  when  recorded  can  be 
revoked  only  by  an  instrument  recorded  in  the  same 
office  in  which  the  power  of  attorney  is  recorded.^  An 
assignment  of  a  mortgage  may  be  recorded,  and  the  rec- 
ord operates  as  notice  to  all  persons  subsequently  acquir- 
ing title  from  the  assignor.®  When  a  deed  absolute  in 
form  is  intended  as  a  mortgage,  or  to  be  defeasible  on  the 
performance  of  certain  conditions,  the  deed  is  not  defeated 
or  affected  as  against  any  other  persons  than  the  grantee, 
his  heirs  or  devisees,  or  persons  having  actual  notice, 
unless  the  defeasance  is  recorded  in  the  office  of  the  re- 
corder of  the  county  where  the  land  lies.^  The  recording 
of  an  assignment  of  a  mortgage  is  not  of  itself  notice  to  the 
mortgagor  so  as  to  invalidate  any  payment  made  by  him 
to  the  mortgagee.^ 

1  Civil  Code,  §  1107. 

2  Civil  Code,  §  1213. 
2  Civil  Code,  §  1214. 

*  Civil  Code,  §  1217. 

*  Civil  Code,  §  1216. 
«  Civil  Code,  §  2934 

'  Civil  Code,  §  2950. 

*  Civil  Code,  §  2935.  See,  generally,  on  the  subject  of  registration, 
Bird  V.  Dennison,  7  Cal.  297;  Woodwortli  v.  Guzman,  1  Cal.  203;  Lan- 
ders V.  Bolton,  26  Cal.  393;  Jones  v.  Marks,  47  Cal.  242;  Fogarty  v.  Saw- 
yer, 23  Cal.  570;  Vassaultw.  Austin,  36  Cal.  691;  Patterson  c.  Donner,  48 
Cal.  369;  Smiths;.  Yule,  31  Cal.  180;  89  Am.  Dec.  167;  Odd  Fellows' 
Sav.  Bank  v.  Banton,  46  Cal.  603  ;  Lawton  v.  Gordon,  37  Cal.  202 ;  Hunter 
V.  Watson,  12  Cal.  363;  73  Am.  Dec.  543;  O'Rourke  v.  O'Connor,  39  Cal. 


799  REGISTRY   LAWS.  §§  581,  582 

§  581.  Colorado. —  Convej'ances  are  recorded  in  the 
office  of  the  recorder  of  the  county  in  which  the  hind  is 
situated,  and  take  effect  as  to  subsequent  bona  fide  pur- 
chasers and  encumbrancers  by  mortgage,  judgment,  or 
otherwise,  not  having  notice  thereof  from  the  time  of  fil- 
ing for  record,  and  not  before/  Deeds  and  other  convey- 
ances are  deemed,  from  the  time  of  filinsf  for  record, 
notice  to  subsequent  purchasers  or  encumbrancers, 
though  not  acknowledged  or  proven  according  to  law. 
But  neither  they  nor  the  record  can  be  read  in  evidence, 
unless  such  conveyances  are  subsequently  acknowledged 
or  proved  according  to  law,  or  their  execution  be  proved 
in  the  same  manner  as  other  writings.^ 

§  582.  Connecticut. — No  conveyance,  unless  recorded 
in  the  records  of  the  town  in  which  the  land  is  situated, 
is  effectual  against  any  other  person  than  the  grantor  and 
his  heirs.  The  town  clerk  is  required  to  note  on  the  deed 
the  day  and  year  when  he  received  it.  When  once  re- 
ceived it  shall  not  be  delivered  up  again  until  it  is  re- 
corded. If  a  deed  is  executed  under  a  power  of  attorney, 
the  latter  must  be  recorded  with  the  deed.  AVhen  a  con- 
veyance of  land  lying  in  two  or  more  towns  is  recorded  in 
one  or  more  of  such  towns,  and  is  afterward  lost,  a  certi- 
fied copy  of  the  record  may  be  recorded  in  the  otlier  towns, 
and  have  the  same  effect  as  a  record  of  the  original. 
"An  acknowledged  deed,  and  any  instrument  intended 
as  a  conveyance  of  lands,  but  which,  by  reason  of  a 
formal  defect,  sliall  operate  only  as  a  conveyance  of  an 
equitable  interest  in  such  lands,  and  contracts  for  the  con- 
veyance of  lands,  or  of  any  interest  therein,  and  all  instru- 

442;  Snodgrass  v.  Ricketts,  13  Cal.  .359;  Thompson  v.  Pioclie,  44  Cal.  508; 
Mnhoney  v.  Middleton,  41  Cal.  41 ;  Fair  v.  Stevenot,  29  Cal.  486 ;  Wilcox- 
eon  V.  Donner,  49  Cal.  193;  Frey  v.  Clifford,  44  Cal.  335;  Dennis  v.  Bur- 
ritt,  6  Cal.  670;  Long  v.  Dollarhide,  24  Cal.  218;  Packard  v.  Johnson,  51 
Cal.  545:  McMinn  v.  O'Connor,  27  Cal.  238  ;  Call  v.  Hastings,  3  Cal.  179; 
(Jliainbcrlain  v.  Bell,  7  Cal.  292;  68  Am.  Dec.  260;  JMcCabe  v.  Grey,  20 
Cal.  509. 

'  <ien.  Laws,  §  176  (ch.  18,  §  17). 

*  Cen.  Laws,  §  178. 


§§  583,  584  EEGISTRY    LAWS.  800 

ments  by  which  an  equitable  interest  in  lands  is  created, 
in  which  such  lands  are  particularly  described,  may  be 
recorded  in  the  records  of  the  town  in  which  such  lands 
are;  and  such  record  shall  be  notice  to  all  the  world  of 
the  equitable  interest  thus  created."  All  conveyances  of 
wdiich  the  grantor  is  ousted  by  the  possession  of  another 
are  void  unless  made  to  the  person  in  actual  possession/ 
But  the  possession  by  a  mortgagee  is  not  considered  as 
being  adverse.-  Although  a  deed  may  not  be  recorded 
till  after  the  death  of  the  grantor,  it  is  good  as  against  a 
purchaser  from  his  heir.^  An  action  lies  against  the 
clerk  for  delivering  up  a  deed  before  it  is  recorded.'* 

§  583.  Dakota,  :N"ortli  and  South. — Since  the  issuance 
of  the  first  edition,  Dakota  Territory  has  been  divided  into 
North  and  South  Dakota,  and  both  have  been  admitted  as 
States.  For  the  laws  of  these  States  relating  to  the  regis- 
try laws  see  the  sections  on  North  Dakota  and  South 
Dakota. 

§  584.  Delaware. — Deeds  shall  be  recorded  in  the 
recorder's  office  for  the  county  in  which  the  land  is  situ- 
ated, if  lodged  in  such  office  within  one  year  after  the 
day  of  the  sealing  and  delivery  of  such  deed.^  The  regis- 
tration of  a  deed  in  one  county  has  effect  only  to  lands 
mentioned  in  the  deed  situate  in  such  county."  If  a  deed 
is  not  recorded  in  the  proper  office  within  one  year  after 

1  Gen.  Stats.  §§  2961-2966. 

^  Sanford  v.  Washburn,  2  Root,  499.  See  generally  Ray  v.  Bush,  1 
Root,  81;  Franklin  v.  Cannon,  1  Root,  500;  Hartmeyer  v.  Gates,  1  Root 
61;  Beers  v.  Hawley,  2  Conn.  467;  Hine  v.  Robbins,  8  Conn.  342; 
Wheaton  v.  Dyer,  15  Conn.  307;  Hinman  v.  Hinman,  4  Conn.  575; 
Welch  V.  Gould,  2  Root,  287;  .Tudd  v.  Woodruff,  2  Root,  298;  Hall's 
Heirs  v.  Hall.  2  Root,  383;  Dickenson  v.  Glenney,  27  Conn.  104;  Summer 
V.  Rhoda,  14  Conn.  135;  Watson  v.  Wells,  5  Conn.  468;  Carter  v.  Cham- 
pion ,  8  Conn.  549 ;  21  Am.  Dec.  695. 

2  Hill  V.  Meeker,  24  Conn.  211. 

*  Wells  V.  Hutchinson,  2  Root,  85.     See  Hine  v.  Robbins,  8  Conn.  342. 

*  Laws  Rev.  Code,  p.  504,  §  14.  But  see  the  change  made  in  Delaware 
by  act,  vol.  17,  c.  213. 

'«  Laws,  Rev.  Code,  p.  503,  ^  15. 


801  REGISTRY    LAWS.  §  585 

the  day  of  the  sealing  and  delivery,  "it  sliall  not  avail 
against  a  subsequent  fair  creditor,  mortgagee,  or  pur- 
chaser for  a  valuable  consideration,"  unless  it  shall  be 
shown  that  the  creditor  when  giving  tlie  credit,  or  the 
mortgagee  or  purchaser  when  advancing  the  considera- 
tion, had  notice  of  such  deed.^  A  purchase  money  mort- 
gage recorded  within  sixty  days  after  its  execution  has 
preference  over  any  judgment  against  the  mortgagor,  or 
any  other  lien  created  by  him,  although  the  same  may  be 
of  a  date  prior  to  the  mortgage.^  Where  there  is  an  ab- 
solute conveyance  and  a  defeasance  or  reconveyance,  the 
person  to  whom  such  conveyance  is  made  shall  cause  to 
be  indorsed  thereon  and  recordedwith  it,  a  note  stating 
that  there  is  such  a  defeasance  and  its  general  purport, 
else  the  recording  of  such  conveyance  shall  be  of  no  effect; 
and  such  defeasance  must  be  duly  acknowledged  and  re- 
corded in  the  recorder's  office  of  the  county  in  which  the 
land  lies,  within  sixty  days  after  the  day  of  making  the 
same,  or  it  shall  be  of  no  avail  against  a  fair  creditor, 
mortgagee,  or  purchaser  for  a  valuable  consideration,  from 
the  person  to  whom  the  conveyance  is  made,  unless  such 
persons  had  notice  at  the  time  of  giving  credit  or  parting 
with  the  consideration.^  Though  the  acknowledgment  to 
deeds  may  be  defective,  record  of  such  deeds  if  dated 
prior  to  January  1,  1880,  duly  signed  and  sealed  by  the 
grantor,  will  be  admitted  in  evidence  as  valid.* 

§  SS."*.  District  of  Columbia. — Deeds  are  recorded  in 
the  office  of  the  recorder.  All  deeds  which  are  recorded 
within  six  months  after  delivery,  with  the  exception  of 
trust  deeds  and  mortgages,  take  effect  as  to  all  persons 
from  the  time  of  their  acknowledgment  or  proof.  Deeds 
of  trust  and  mortgages,  without  regard  to  the  time  at 
which  they  are   delivered  for  record,  and  all  other  con- 

*  Laws,  Rev.  Code,  p.  504,  §  17. 

*  Lawa,  Rev.  Code,  p.  505,  §  21. 

'  Laws,  Rev.  Code,  1874,  p.  504,  §  18. 

*  Dtd.  Laws,  1893,  p.  1116. 
Deed',  Vol.  I.—  jl 


§§  586,  587  REGISTRY    LAWS.  802 

veyaiices  which  are  delivered  after  the  expiration  of  six 
months  from  the  time  of  their  delivery,  take  effect  as 
against  subsequent  purchasers  for  a  valuable  consideration 
without  notice,  and  creditors,  only  from  the  time  that  such 
deed  of  trust,  mortgage,  or  other  conveyance,  shall  have 
been  delivered  to  the  recorder  for  record  after  its  proper 
acknowledgment.  When  two  or  more  deeds  embracing 
the  same  land  are  filed  for  record  on  the  same  day,  the 
one  first  sealed  and  delivered  has  the  preference.' 

§  586.  Florida. — No  conveyance  is  good  or  effectual 
in  law  or  in  equity  against  creditors  or  subsequent  pur- 
chasers  for  a  valuable  consideration  and  without  notice, 
unless  it  is  recorded  in  the  office  assigned  by  law  for  that 
purpose.  No  conveyance  of  any  character  made  by  vir- 
tue of  a  power  of  attorney,  is  good  or  effectual  in  law  or 
in  equity  against  creditors  or  subsequent  purchasers  for  a 
valuable  consideration  and  without  notice,  unless  the  exe- 
cution of  such  power  of  attorney  is  duly  proved  before 
the  recording  officer  of  the  county  in  which  the  land  is 
situated,  and  recorded  at  the  time  of  recording  the  deed 
made  in  pursuance  of  it.  But  the  recorder  is  not  author- 
ized to  refuse  to  record  any  conveyance  offered  for  record, 
the  execution  of  which  is  duly  proved.^ 

§  587.  Georgia. — "  Every  deed  conveying  lands  shall 
be  recorded  in  the  office  of  the  clerk  of  the  superior  court 
where  the  land  lies,  within  one  j^ear  from  the  date  of  such 
deed.  On  failure  to  record  within  this  time,  the  record 
may  be  made  at  any  time  thereafter;  but  such  deed  loses 
its  priority  over  a  subsequent  deed  from  the  same  vendor, 
recorded  in  time,  and  taken  without  notice  of  the  exist- 
ence of  the  first."^  A  registered  deed  is  admitted  in  evi- 
dence without  further  proof,  unless  the  grantor,  or  one  of 
his  heirs,  or  the  adverse  party  in  the  suit,  will  file  an  affi- 
davit that  the  deed  to  the  best  of  his  knowledge  and  belief 

1  Rev.  Stats.,  1874,  pp.  52,  53. 

2  Dig.  of  Laws,  pp.  215-219. 

8  Code,  1873  Clrwin,  Lester  &  Hill),  §  2705;  Code,  1883,  §  2705. 


803  REGISTRY    LAWS.  §  588 

is  a  forgery,  when  the  court  will  arrest  the  cause  and  try 
the  issue  as  to  the  genuineness  of  such  alleged  deed/  A 
mortgage  must  be  recorded  within  three  months  from  its 
date,  and  if  not  so  recorded,  while  remaining  valid  as 
against  the  mortgagor,  it  is  postponed  to  all  other  liens 
created  or  obtained,  or  purchases  made  prior  to  the  time 
the  mortgage  is  actually  recorded.  If  the  purchaser  has 
notice  of  the  prior  unrecorded  mortgage  the  lien  of  such 
mortgage  is  good  as  against  him.^  A  mortgage  which  is 
recorded  in  an  improi)er  office,  or  without  due  acknowl- 
edgment, or  recorded  so  defectively  as  not  to  give  notice 
to  a  prudent  inquirer,  is  not  notice  to  subsequent  bona 
fide  purchasers  or  encumbrancers.  But  the  record  is  not 
vitiated  by  a  mere  formal  mistake.^  Though  a  mortgage 
is  not  recorded  within  the  time  prescribed,  it  is  notice  to 
all  the  world  from  the  time  at  which  it  is  recorded.'*  The 
law  as  above  stated  on  wiiich  many  decisions  are  based, 
lias  been  modified  by  the  act  of  October  1,  1889,  provid- 
ing that  conveyances  take  effect  only  from  the  time  at 
whicli  they  are  filed  for  record  in  the  clerk's  office  as 
against  third  persons  who  act  in  good  faith  and  without 
notice,  and  the  clerk  is  required  to  note  on  the  instru- 
ment the  day  and  hour  when  it  was  filed  for  record. 

§  588.  Idaho. — Every  conveyance  to  operate  as  notice 
to  third  persons  must  be  recorded  in  the  office  of  the 
recorder  of  the  county  in  which  the  land  lies,  but  is  valid 
between  the  parties  without  such  record.  Every  convey- 
ance imparts  notice  to  all  persons  of  its  contents  from  the 

>  Code,  1873,  §  2712.    See  Benson  v.  Green,  80  Ga.  230. 

••'  Code,  1873,  §  1957. 

»  Code,  1873,  §  1959. 

*  Code,  1873,  §  1960;  Code,  1883,  §  1960.  See  generally  on  the  registry 
acts,  Felton  v.  Pitman,  14  Ga.  536;  Allen  v.  Holding,  29  Ga.  485;  s.  c.32 
Ga.  418;  Hardaway  v.  Semmes,  24  Ga.  305;  Wyatt  v.  Elam,  19  Ga.  335; 
Williama  v.  Adams,  43  Ga.  407;  Lee  v.  Cato,  27  Ga.  637;  73  Am.  Dec. 
746;  Herndon  v.  Kimball,  7  Ga.  432;  50  Am.  Dec.  406;  Burkhalter  v. 
YjcIot,  25  G a.  55:  Williams  v.  Logan,  32  Ga.  165;  Rushin  v.  Sliilds,  11 
Ga.  636;  56  Am.  Dec.  436;  Andrews  v.  Mathews,  59  Ga.  466;  Myers  v. 
Picquet,  61  Ga.  200. 


§§  589-590  REGISTRY    LAWS.  804 

time  the  same  is  filed  with  the  recorder  for  record,  and 
Bubsequeut  purcliasers  are  deemed  to  purcliase  witli  no- 
tice. Every  conveyance  not  so  recorded  is  void  against 
subsequent  purchasers  in  good  faith  and  for  a  vakiable 
consideration,  whose  conveyances  are  first  duly  recorded.' 
A  revocation  of  a  recorded  power  of  attorney  shall  not  be 
valid  until  such  revocation  is  deposited  for  record  in  the 
same  office  in  which  the  power  of  attorney  is  recorded.'-^ 

§  589.  Illinois. — Deeds,  mortgages,  and  other  convey- 
ances authorized  to  be  recorded,  take  effect  from  the  time 
they  are  filed  for  record  and  not  before,  as  to  creditors 
and  purchasers  without  notice.  Although  deeds  may  not 
be  acknowledged  according  to  law,  they  are  deemed,  from 
the  time  of  being  filed  for  record,  notice  to  subsequent 
purchasers  and  encumbrancers,  but  they  are  not  entitled 
to  be  read  in  evidence,  unless  their  execution  be  proved 
in  the  mode  required  by  the  rules  of  evidence,  so  as  to 
supply  the  defects  of  such  acknowledgment.^ 

§  589  a.  Indian  Territory. — With  the  exception  of  the 
Quapaw^  Agency  the  title  to  land  is  still  in  the  United 
States,  and  the  different  Indian  tribes  hold  their  reserva- 
tions in  common  under  patent  from  the  Federal  Govern- 
ment. Allotments  have  been  taken  by  nearly  all  the 
affiliated  tribes  of  the  Quapaw  Agency,  and  with  the  ex- 
ception of  lots  in  this  agency,  and  in  the  townsite  of 
Miami,  citizens  of  the  United  States  cannot  own  land  but 
must  hold  as  tenants  of  some  Indian  landlord. 

§  590.  Indiana. — Conveyances  are  recorded  in  the  re- 
corder's office  of  the  county  where  the  land  lies,  and  if 
not  recorded  within  forty-five  days  from  their  execution 
they  are  fraudulent  and  void  as  against  any  subsequent 

>  Eev.  Laws,  H  24-26. 

*  Eev.  Laws,  §  28. 

'  Rev.  Stats.  1845,  p.  109,  §§  23,  28;  Rev.  Stats.  1877,  c.  80,  §§  30,  31; 
Rev.  Stats,  by  Hurd  (1880),  p.  271,  §  30;  Rev.  Stats,  by  Hurd  (1883),  p. 
284,  §  2831.     See  Hurd,  371,  et  seq. 


805 


REGISTRY    LAWS. 


§§  591,592 


purchaser,  lessee,  or  mortgagee  iu  good  faith  and  for  a 
valuable  consideratiou.'  When  a  deed  absolute  in  form 
is  intended  as  a  mortgage,  the  original  deed  is  not  de- 
feated as  against  any  person  other  than  the  maker,  or  his 
heirs  or  devisees,  or  persons  having  actual  notice,  unless 
the  defeasance  shall  have  been  recorded  according  to  law 
within  ninety  days  after  the  date  of  the  deed.^  Each  re- 
corder is  required  to  keep  a  book,  each  page  of  which 
shall  be  divided  into  five  columns,  with  the  following 
heads: — 


Date  of 
Reception. 


Names     of 
Grantors. 


Names    of 
Grantees. 


Description 
of  Lands. 


Vol.  and  page 
where         recorded. 


The  recorder  is  required  to  enter  in  this  book  all  deeds 
left  with  him  for  record,  noting  in  the  first  column  the 
day  and  hour  the  deed  was  received,  and  the  other  par- 
ticulars in  the  other  columns.  Every  deed  is  considered 
as  recorded  at  the  time  so  noted.^ 

§  591.  Iowa. — Deeds  are  recorded  in  the  county  in 
which  the  land  lies,  and  are  of  no  validity  as  against  sub- 
sequent purchasers  without  notice,  unless  so  recorded.  To 
entitle  them  to  registration  they  must  be  duly  acknowl- 
edged or  proved.* 

§  5f>2.  Kansas. — Deeds  are  recorded  in  the  office  of 
the  register  of  deeds  of  the  county  in  which  the  real  es- 


^  See  Reasoner  tj.  Edmundson,  5  Ind.  393;  Wright  v.  Shepherd,  47 
Ind.  176,  179;  Faulkner  v.  Overturf,  49  Ind.  265;  Tresler  v.  Tresler,  38 
Ind.  282,  285;  Brannan  v.  May,  42  Ind.  92,  96. 

''  Stats.  Revision  of  1876,  p.  365,  §  17;  Ind.  Rev.  Stats.,  §  2931. 

3  Stats.  Revision  of  1876,  p.  367,  §  29 ;  1881,  §  2931.  See,  also,  Rev. 
Stats.  1888. 

♦  Code  of  1873,  §§  1941,  1942,  and  Rev.  Code  of  1880,  by  Miller  (1880), 
§  1941;  1884,  p.  1941,  §  194.  On  the  question  of  notice  and  subsequent 
purchasers,  see  Miller  v.  Bradford,  12  Iowa,  14;  Stewart  v.  Huff,  19  Iowa, 
557;  Calvin  v.  Bowman,  10  Iowa,  529;  Suiter  v.  Turner,  10  Iowa,  517; 
Willard  v.  Cramer,  36  Iowa,  22;  Gower  v.  Doheney,  33  Iowa,  36;  Scolea 
V.  Wilsey,  11  Iowa,  261;  Brinton  v.  Seevers,  12  Iowa,  389;  Bostwick  v. 
Powers,  12  Iowa,  456;  Breed  v.  Conley,  14  Iowa,  269;  81  Am.  Dec.  485; 
Haynes  i;.  Seacreat,  13  Iowa,  455;  Stewart  t;.  Huff,  19  Iowa,  557;  Dar- 


§  593  REGISTRY    LAWS.  806 

tate  is  situated.  A  deed  imparts  notice  to  all  persons  of 
its  contents  from  the  time  it  is  filc'd  with  the  reg  ster 
of  deeds  for  record,  subsequent  purchasers  being  deemed 
to  purchase  with  notice.^  A  deed  is  not  valid  except  as 
between  the  parties  thereto,  and  such  as  have  actual 
notice,  until  it  is  deposited  with  the  register  of  deeds  for 
record.^  A  power  of  attorney  should  be  recorded  pre- 
vious to  the  sale  or  the  execution  of  the  deed  made  under 
it,  and  when  once  recorded  shall  not  be  deemed  to  be  re- 
voked by  any  act  of  the  party  by  whom  it  was  made, 
until  the  instrument  of  revocation  is  filed  in  the  recorder's 
office  for  record.^ 

§  593.  Kentucky. — Where  a  conveyance  made  by  vir- 
tue of  a  power  is  required  to  be  recorded  to  make  it  valid 
against  creditors  and  purchasers,  the  power  must  be  re- 
corded in  the  same  manner.^  Where  the  power  of  attor- 
ney is  not  recorded,  the  registration  of  the  deed  will  not 
operate  as  constructive  notice.^  "  Deeds  made  by  residents 
of  Kentucky,  other  than  deeds  of  trust  and  mortgages, 
shall  not  be  good  against  a  purchaser  for  a  valuable  con- 
sideration, not  having  notice  thereof,  or  any  creditor, 
except  from  the  time  the  same  shall  be  legally  lodged  for 
record,  unless  the  same  be  so  lodged  within  sixty  days 
from  the  date  thereof.  If  made  by  persons  residing  out 
of  Kentucky,  and  in  the  United  States,  within  four 
months;    if   out    of    the    United    States,    within    twelve 

gin  V.  Beeker,  10  Iowa,  571;  Bringholff  v.  Munzenmaier,  20  Iowa,  513; 
Koons  V.  Grooves,  20  Iowa,  373 ;  Gardner  v.  Cole,  21  Iowa,  205. 

^  See  Simpson  v.  Mundee,  3  Kan.  172;  Brown  v.  Simpson,  4  Kan.  76  ; 
Claggett  V.  Crall,  12  Kan.  397;  Wickersham  v.  Zinc  Co.,  18  Kan.  487;  26 
Am.  Rep.  784. 

2  Comp.  Laws  (Dassler),  p.  212,  §  1044.  See  also  Gen.  Stats.  1134.  See 
Coon  V.  Browning,  10  Kan.  85;  Simpson  v.  Mundee,  3  Kan.  172;  Gray 
t;.  Ulrich,  8  Kan.  112;  Swarts  v.  Stees,  2  Kan.  236;  85  Am.  Dec.  588; 
School  District  v.  Taylor,  19  Kan.  287 ;  Johnson  v.  Clark,  18  Kan.  157, 
164;  Jones  v.  Lapham,  15  Kan.  140. 

=•  Comp.  Laws  (Dassler),  §§  1046,  1047.     See  Gen.  Stats.  1134. 

*  Gen.  Stats.  1873  (Bullock  &  Johnson),  p.  256,  §  13. 

^  Graves  v.  Ward,  2  Duval,  301. 


807  REGISTRY   LAWS.  §§  594-596 

months."^  Altliough  a  deed  be  not  filed  for  record  within 
eigiit  months,  it  is  still  good  against  a  subsequent  pur- 
chaser with  notice,  and  if  the  purchaser  be  a  married 
woman,  notice  to  her  husband  is  likewise  notice  to  her.^ 

§  594.  Louisiana. — Conveyances,  while  valid  between 
the  parties  and  their  heirs,  are  void  as  to  third  persons, 
unless  publicl}'  inscribed  on  the  records  of  the  parish,  and 
they  become  operative  as  to  such  persons  from  the  time 
they  are  filed  for  record.*  For  the  purpose  of  rendering 
a  search  for  mortgages  for  a  period  further  back  than  ten 
years  unnecessary,  it  is  required  that  before  the  ex^iira. 
tion  of  this  time  the  inscription  shall  be  renewed.^ 

§  595.  Maine. — A  deed  is  not  effectual  as  against  any 
person  except  the  grantor,  his  heirs  and  devisees,  and 
persons  having  actual  notice,  unless  it  is  recorded."  A 
deed  absolute  in  form  cannot  be  defeated  by  a  defeasance, 
as  against  any  other  ^^erson  than  the  maker,  his  heirs  and 
devisees,  unless  such  defeasance  is  recorded  in  the  same 
office  as  the  deed.*' 

§  596.  Maryland- — Deeds  must  be  recorded  within  six 
months  from  their  date  in  the  county  in  which  the  land 
lies,  and  when  it  lies  in  more  than  one  county,  or  tiie  city 
of  Baltimore  and  a  county,  then  in  all  the  counties  in 
which  it  is  situated.^     Every  deed,  after  due  acknowledg- 

1  Gen.  Stats,  1873,  p.  257,  §  14;  Gen.  Stats.  1883,  p.  257,  §  14.  But 
this  distinction  was  abolished  in  1893.  See  Acts  1893,  c.  186,  §  7;  Stats. 
1894, §  496. 

»  Bennett  v.-Tetherington,  B  Bush,  192.     See,  also,  Ky.  Stats.,  §  494. 

»  Rev.  Code,  §  2266. 

*  Rev.  Code,  ^  3342.     See,  also,  Ky.  Stats.,  §  494. 

*  Rev.  Stats.  1871,  p.  560,  §  8;  Rev.  Stats.  1883,  p.  604,  §  8.  See  Mer- 
rill v.  Ireland,  40  Me.  569;  Lawrence  v.  Tucker,  7  Me.  195;  Porter  i;. 
Sevey,  43  Me.  519;  Kent  v.  Plummer,  7  Me.  464;  Goodwin  v.  Cloudman, 
43  Me.  577;  Pierce  v.  Taylor,  23  Me.  246;  Rackleff  v.  Norton,  19  Me.  274; 
Hanly  v.  Morse,  32  Me.  287;  Veazie  v.  Parker,  23  Me.  170;  Spofford  v. 
Weston,  29  Me.  140;  Bucler  v.  Stevens,  26  Me.  484;  Roberts  v.  Bourne, 
23  Me.  165;  39  Am.  Dec.  614. 

*  Rev.  Stats.  1871,  p.  560,  §  9. 
'  Rev.  Code,  §  16. 


§  596  REGISTRY    LAWS.  808 

meiit  and  registration,  takes  effect  as  between  the  parties 
from  its  date,  and  no  deed  is  valid  for  the  purpose  of  pass- 
ing title,  unless  acknowledged  and  recorded  as  provided  by- 
statute/  When  there  are  two  or  more  deeds  for  the  same 
land,  the  deed  first  recorded,  according  to  law,  is  preferred, 
if  made  bona  fide  and  upon  a  good  and  valuable  consid- 
eration.^ If  the  recording  officer  should  die,  and  during 
the  interim  between  his  death  and  the  qualification  of 
his  successor  the  time  for  recording  a  deed  should  ex- 
pire, the  successor  of  the  deceased  clerk  shall  record  the 
same  at  any  time  within  one  month  after  his  qualifica- 
tion, and  such  record  will  have  the  same  effect  as  if  the 
deed  were  recorded  within  the  prescribed  time.  The 
succeeding  clerk  shall,  however,  indorse  thereon  the  time 
of  the  death  of  the  former  clerk,  and  the  date  of  his  own 
qualification,  and  this  indorsement  shall  be  recorded  with 
the  deed.^  Conveyances,  except  deeds  or  conveyances  by 
way  of  mortgages,  may  be  recorded  after  the  time  pre- 
scribed by  statute,  and  when  so  recorded,  have,  as  against 
the  grantor,  his  heirs,  or  executors,  and  against  all  pur- 
chasers with  notice  and  against  creditors,  who  shall 
become  so  after  the  recording  of  such  conveyance,  the 
same  effect  as  if  recorded  within  the  prescribed  time.* 
Where  possession  is  taken,  a  deed  after  being  recorded 
(though  not  recorded  within  six  months),  has  against  all 
persons  from  the  time  of  taking  possession,  the  same 
effect  as  if  recorded  in  proper  time;^  but  as  against  all 
creditors  who  have  become  so  before  the  recording  of  the 
deed,  and  without  notice  of  its  existence,  it  has  effect 
only  as  a  contract  to  convey.^ 

1  Rev.  Code,  §§  17,  18.  See  Byles  v.  Tome,  39  Md.  461;  Hoopes  ». 
Knell,  31  Md.  550 ;  Building  Assn.  v.  Willson,  41  Md.  514 ;  Cooke's  Lessee 
V.  Kell,  13  Md.  469. 

2  Rev.  Code,  §  19. 

3  Rev.  Code,  §  21. 
*  Rev.  Code,  §  22. 
fi  Rev.  Code,  §  23. 

^  Rev.  Code,  1878,  §  24.  See,  generally,  on  these  sections,  Abrams  v, 
Sheehan,  40  Md.  446;  Walsh  v.  Boyle,  30  Md.  267;  Owens  v.  Miller,  29 
Md.  144;  Glenn  v.  Davis,  35  Md.  215;  6  Am.  Rep.  389;  Estate  of  Lei- 


809 


REGISTRY    LAWS. 


597,59a 


§  597.  Massachusetts. — Deeds  are  not  valid  as  against 
persons  other  than  the  grantor,  his  heirs  and  devisees, 
and  persons  having  actual  notice,  unless  they  are  recorded 
in  the  registry  of  deeds  for  the  county  in  which  the  land 
is  situated/  An  absolute  deed  is  not  affected  by  a  defea- 
sance as  against  any  other  person  than  the  maker  of  the  de- 
feasance, his  heirs  and  devisees,  and  persons  having  actual 
notice,  unless  such  defeasance  is  recorded  in  the  registry 
of  deeds  for  the  county  in  which  the  real  estate  is  situated.^ 

§  598.  Michig-an. — Every  register  of  deeds  is  required 
to  keep  an  entry  book  of  deeds,  divided  into  six  columns, 
as  shown  in  the  note.^  Every  conveyance  which  is  not 
recorded  as  provided  by  statute  is  void  as  against  subse- 
quent purcliasers  in  good  faith  and  for  a  valuable  consid- 
eration, whose  conveyances  are  first  duly  recorded.*     An 


man,  32  Md.  225;  3  Am.  Eep.  132;  Administrators  of  Carson  v.  Phelps, 
40  Md.  97;  Nelson  v.  Hagerstown  Bank,  27  Md.  51;  Lester  c.  Hardesty, 
29  Md.  50;  Wiliard's  Executors  r;.  Ramsburg,  22  Md.  206;  Horner  v. 
Greoholz,  38  Md.  521;  Kane  v.  Roberts,  40  Md.  590;  Leppoc  v.  National 
Union  Bank,  32  Md.  136;  Cockey  v.  Milne's  Lessee,  16  Md.  207;  Busey 
V.  Reese,  38  Md.  264. 

'  Pub.  Stats.  1882,  p.  732,  H;  Gen.  Stats.  1860,  p.  466,  §  3.  See  Stet- 
son V.  Gulliver,  2  Cush.  494;  Lawrence  v.  Stratton,  6  Gush.  163;  Parker 
V.  Osgood,  3  Allen,  487;  Sibley  v.  Leffingwell,  8  Allen,  584;  George  v. 
Kent,  7  Allen,  16;  Lamb  v.  Pierce,  113  Mass.  72;  Faxon  v.  Wallace,  101 
Mass.  444 ;  Earle  v.  Fiske,  103  Mass.  491 ;  State  of  Connecticut  v.  Brad- 
ish,  14  Mass.  296 ;  Adams  v.  Cuddy,  13  Pick.  460 ;  25  Am.  Rep.  330 ;  Glid- 
den  V.  Hunt,  24  Pick.  221 ;  Flynt  v.  Arnold,  2  Met.  619 ;  Dole  v.  Thurlow, 

12  Met.  157,  163;  Pomroy  v.  Stevens,  11  Met.  244;  Curtis  v.  Mundy,  3 
Met.  405;  Marshall  v.  Fisk,  6  Mass.  24;  4  Am.  Dec.  76;  Stewarts.  Clark 

13  Met.  79. 

*  Pub,  Stats.  1882,  p.  734,  §  23;  Gen.  Stats.  1860,  c.  89,  §  15.  See 
Foote  V.  Hartford  Ins.  Co.,  119  Mass.  259;  Bayley  v.  Bailey,  5  Gray,  505. 

8  Howell's  Annotated  Stats.  1882,  vol.  2,  p.  1469,  c.  216,  §  5674.  The 
form  prescribed  is  as  follows : 


Pate  of    I 
Reception, 


Grantors. 


Township  where 
the  land  lies. 


to      oj 


i'o  whom  delivered 
[after  being  record- 
ed] and  date  [of  de- 
livery]. 


Fees 
received. 


*  Howell's  Annotated  Stats.,  vol.  2,  p.  1473,  §  29;  Comp.  Laws,  1871, 
pp.  1345,  1346. 


§§  599,  600  REGISTRY    LAWS.  810 

absolute  deed,  defeasible  on  the  performance  of  certain 
conditions,  is  not  affected  as  against  any  person  other 
than  the  maker  of  the  defeasance,  or  his  heirs  or  devisees, 
or  persons  having  actual  notice,  unless  such  defeasance 
is  properly  recorded.^  A  revocation  of  a  recorded  power 
of  attorney  must  also  be  recorded/ 

§  599.  Minnesota. — Deeds  are  recorded  in  the  office 
of  the  register  of  deeds  where  the  real  estate  is  situated; 
and  every  deed  not  so  recorded  is  void  as  against  any 
subsequent  purchaser,  in  good  faith  and  for  a  valuable 
consideration,  whose  conveyance  is  first  duly  recorded,  or 
as  against  any  attachment  levied  on  the  property,  or  any 
judgment  lawfully  obtained  at  the  suit  of  one  against  the 
person  in  whose  name  the  record  title  was  prior  to  the 
recording  of  the  conveyance.^  The  term  "  purchaser  " 
includes  every  person  to  whom  any  interest  in  real  estate 
is  conveyed  for  a  valuable  consideration,  and  also  every 
assignee  of  a  mortgage,  lease,  or  other  conditional  estate.* 
A  certified  copy  of  the  record  of  a  deed  may  be  recorded 
in  any  county  in  the  State,  with  the  same  force  and  effect 
as  the  original  conveyance  would  have  if  so  recorded.^ 

§  600.  Mississippi. — Conveyances  are  void  as  to  all 
creditors  and  subsequent  purchasers  for  a  valuable  con- 
sideration without  notice,  unless  acknowledged  or  proved, 
and  lodged  with  the  clerk  of  the  chancery  court  of  the 
proper  county  for  record;  but  they  are  valid  and  binding 
as  between  the  parties  and  their  heirs,  and  as  to  all  sub- 
sequent purchasers  with  notice,  or  without  valuable  con- 
sideration.^    Every  conveyance,  except  deeds  of  trust  and 

1  Howell's  Annotated  Stats.,  vol.  2,  §  5686. 

*  Howell's  Annotated  Stats.,  vol.  2,  §  5692.  See  Doyle  v.  Stevens,  4 
Mich.  87;  Barrows  v.  Baughman,  9  Mich.  213;  God  troy  v.  Disbrow,  11 
Mich.  260;  Warner  v.  Whittaker,  6  Mich.  133;  72  Am.  Dec.  65;  Wilcox 
V.  Hill,  11  Mich.  2,:;6,  263;  Rood  v.  Chapin,  Walk.  Ch.  79. 

'^  Stats.  1878,  p.  537,  §  21. 

*  Stats.  1878,  §  26. 

*  Stats.  1878,  k  33.  See  Smith  v.  Gibson,  15  Minn.  89,  99;  Coy  v.  Coy, 
15  Minn.  119,  126. 

6  Eev.  Code,  1871,  p.  503,  §  2304. 


811  REGISTRY    LAWS.  ■      §§   GOl,  602 

mortgages  which  are  properly  acknowledged  and  deliv- 
ered to  the  clerk  of  the  proper  county,  to  be  recorded 
within  three  months  after  its  execution,  takes  effect  from 
the  date  of  its  delivery;  but  deeds  of  trust  and  mortgages, 
whenever  they  shall  be  delivered  for  record,  and  deeds 
not  acknowledged  and  delivered  for  record  within  three 
months  after  execution,  take  effect  as  to  all  subsequent 
purchasers  for  a  valuable  consideration  without  notice, 
and  as  to  all  creditors  only  from  the  time  when  delivered 
to  tlie  clerk  to  be  recorded.  A  deed  which  is  admitted  to 
record  without  proper  acknowledgment  does  not  furnish 
notice  to  subsequent  purchasers  for  a  valuable  consider- 
tion.^ 

§  601.  Missouri. — Every  deed  which  is  duly  acknowl- 
edged and  recorded,  imparts  notice  from  the  time  of  filing 
the  same  for  record  to  all  persons  of  its  contents,  and  all 
subsequent  purchasers  and  mortgagees  are  deemed  in  law 
and  in  equity  to  purchase  with  notice.^  No  deed  is  valid 
except  between  the  parties  and  those  who  have  actual 
notice,  until  it  is  deposited  with  the  recorder  for  record.^ 
A  power  of  attorney  when  recorded  can  be  revoked  only 
by  an  instrument  in  writing  duly  recorded.'*  If  a  deed  is 
recorded  before  a  sale  on  execution,  it  is  good  as  against 
a  judgment,  although  not  recorded  until  after  the  judg- 
ment was  rendered.^ 

§  602.  Montana. — Instruments  entitled  to  be  recorded 
must  be  recorded  by  the  county  clerk  of  the  county  in 
whicli  the  real  property  affected  thereby  is  situated.  An 
instrument  is  deemed  recorded  when,  being  duly  acknowl- 

»  Rev.  Code,  1871,  §§  2306,  2308.     See  Rev.  Code,  1880,  §§  1209,  1212. 

»  Rev.  Stats.  1879,  vol.  1,  p.  114,  §692;  Wagner's  Stats,  1872,  vol.  1, 
p.  277,  §  25. 

»  Ucv.  Stats.  1879,  vol.  1,  p.  114,  §  693;  Wagner's  Stats.  1872,  vol.  1, 
p.  277,  §  26. 

*  Rev.  Stats.  1879,  vol.  1,  p.  114,  §  695;  Wagner's  Stats.  1872,  vol.  1, 
p.  277,  <)  28. 

*  Davis  V.  Ownsby,  14  Mo.  170;  55  Am.  Dec.  105;  Valentine  v.  Hav- 
ener, 20  Mo.  133. 


§  602  REGISTRY    LAWS.  812 

edged,  or  proved  and  certified,  it  is  deposited  in  the 
county  clerk's  office  with  the  proper  officer  for  record. 
Grants  absoUite  in  terms  are  to  be  recorded  in  one  set  of 
books,  and  mortgages  and  securities  in  the  nature  of 
mortgages,  in  another/  The  acknowledgment  of  a  mar- 
ried woman  to  an  instrument  purporting  to  be  executed 
by  her  must  be  taken  the  same  as  that  of  any  otiier  per- 
son.^ A  conveyance  by  a  married  woman  has  the  same 
effect  as  if  she  were  unmarried.^  Officers  taking  and  cer- 
tifying  acknowledgments,  or  proof  of  instruments  for 
record  must  authenticate  their  certificates  by  affixing  their 
signatures  followed  by  the  names  of  their  offices;  also, 
their  seal  of  office,  if  by  the  laws  of  the  State  or  country 
where  the  acknowledgment  or  proof  is  taken,  or  by  au- 
thority of  which  they  are  acting,  they  are  required  to  have 
official  seals/  Every  conveyance  of  real  property  en- 
titled to  record,  from  the  time  it  is  filed  with  the  county 
clerk  for  record,  is  constructive  notice  of  its  contents  to 
subsequent  purchasers  and  mortgagees/  Every  convey- 
ance of  real  property  other  than  a  lease  for  a  term  not 
exceeding  one  year,  is  void  as  against  any  subsequent 
purchaser  or  encumbrancer,  including  an  assignee  of  a 
mortgage,  lease,  or  other  conditional  estate,  of  the  same 
property,  or  any  part  thereof,  in  good  faith  and  for  a 
valuable  consideration,  whose  conveyance  is  first  duly  re- 
corded. The  term  '*  conveyance,"  embraces  every  in- 
strument in  writing  by  which  any  estate  or  interest  in 
real  property  is  created,  aliened,  mortgaged,  or  encum- 
bered, or  by  which  the  title  to  real  property  may  be  af- 
fected, except  wills.  No  instrument  containing  a  power 
to  convey  or  execute  instruments  affecting  real  property, 
which  has  been  recorded,  is  revoked  by  any  act  of  the 
party  by  whom  it  was  executed,  unless  the  instrument 
containing    such    revocation    is    also    acknowledged    or 

1  Civil  Code,  1895;  §  1590-1592. 
«  Civil  Code,  1895;  §  1606. 
3  Civil  Code,  1895;  §  1607. 

*  Civil  Code,  1895;  §  1613. 

*  Civil  Code,  1895;  §1640. 


813  REGISTRY    LAWS.  §  G03 

proved,  certified,  and  recorded  in  the  same  office  in 
which  the  instrument  containing  the  power  was  recorded/ 
An  unrecorded  instrument  is  valid  as  between  the  parties 
and  those  who  have  notice  of  it.^ 

§  603.  Xebraska. — Every  deed  is  considered  recorded 
from  the  time  of  delivery  to  the  clerk,  and  takes  effect 
from  such  time,  and  not  before,  as  to  all  creditors  and  sub- 
sequent purchasers,  in  good  faith  without  notice,  and  is 
adjudged  void  as  to  all  such  creditors  and  subsequent 
purchasers  without  notice,  whose  conveyances  are  first 
recorded,  provided  that  these  conveyances  are  valid  be- 
tween the  parties.'  A  deed  is  not  considered  lawfully  re- 
corded unless  previously  it  has  been  duly  acknowledged 
or  proved.*  It  is  no  objection  to  the  record  of  a  deed  that 
no  official  seal  is  appended  to  the  recorded  acknowledg- 
ment of  it,  "  if,  when  the  acknowledgment  or  proof  pur- 
ports to  have  been  taken  by  an  officer  having  an  official 
seal,  there  be  a  statement  in  the  certificate  of  acknowledg- 
ment or  proof  that  the  same  is  made  under  his  hand  and 
seal  of  office,  and  such  statement  shall  be  presumptive 
evidence  that  the  affixed  seal  was  attached  to  the  original 
instrument."^  The  copy  of  a  record  or  of  a  recorded  deed 
authenticated  in  such  manner  as  to  entitle  it  to  be  read 
in  evidence,  may,  when  the  loss  of  the  original  deed  and 
of  the  record  is  proved,  be  again  recorded,  and  such  rec- 
ord has  the  same  effect  as  the  original.®  An  unrecorded 
mortgage  is  entitled  to  priority  over  a  subsequent  con- 
veyance made  by  the  mortgagor  without  consideration.^ 
AVhere,  through  mistake,  there  is  an  omission  of  a  i)art 

1  Civil  Code,  1895;  §  1643. 
«  Civil  Code,  1895;  §1644. 

»  Comp.  Stats.  1881  (Brown),  p.  389,  §§  15, 16;  Comp.  Stats.  1885,  p. 
477,  §16. 

*  Comp.  Stats.  1881  (Brown),  p.  390,  §  17;  Comp.  Stats.  1885,  p.  478, 
§  17.  See  Comp.  Stats.  1885,  c.  18,  §  82;  c.  73,  §§  15-18,  Laws  of  1887, 
c.  30. 

*  Comp.  Stats.  1881  (Brown),  p.  390,  (,  20;  1885,  p.  478,  §  20. 

*  Comp.  State.  1881  (Brown),  §  21 ;  Comp.  Stats.  1885,  p.  477,  §  21. 
'  Merriman  v.  Hyde,  9  iS'eb.  120. 


§§  604,  605  REGISTRY    LAWS.  814 

of  the  lands  in  the  record  described  in  a  mortgage,  and  a 
judgment  is  recovered  subsequently  against  the  mort- 
gagor, the  lien  of  the  judgment  creditor  must  be  post- 
poned to  the  equity  of  the  mortgagee.^  By  a  law  enacted 
in  1887,  registers  of  deeds  are  elected  in  all  counties 
having  a  population  of  eighteen  thousand  and  over,  who 
have  all  the  powers  and  perform  all  the  duties  formerly 
performed  by  county  clerks.^ 

§  604.  Ifevada. — Conveyances  to  operate  as  notice  to 
third  persons  must  be  recorded  in  the  office  of  the  re- 
corder of  the  county  wliere  the  land  is  situated,  but  are 
valid  and  binding  between  the  parties  without  registra- 
tion. A  conveyance,  from  the  time  it  is  filed  with  the 
recorder  for  record,  imparts  notice  to  all  persons  of  its 
contents,  and  subsequent  purchasers  and  mortgagees  are 
deemed  to  purchase  with  notice.*  Every  conveyance 
which  is  not  thus  recorded  is  void  as  against  any  subse- 
quent purchaser  in  good  faith  and  for  a  valuable  consid- 
eration, whose  conveyance  is  first  duly  recorded.*  A 
power  of  attorney  when  once  recorded  can  be  revoked 
only  by  an  instrument  of  revocation  duly  recorded.^  By 
filing  such  a  revocation  for  record,  it  becomes  absolute 
without  actual  notice  to  the  attorney.  It  operates  as  no- 
tice to  all  persons  dealing  with  him.** 

§  605.  New  Hampshire. — No  deed  of  real  estate  is  valid 
to  hold  the  same  against  any  person  but  the  grantor  and 

1  Galway  v.  Malchow,  7  Neb.  289,  overruling  Bennett  v.  Fooks,  1  Neb. 
465.  See,  generally,  Mansfield  v.  Gregory,  8  Neb.  435;  Berkley  v.  Lamb, 
8  Neb.  392;  Harral  v.  Gray,  10  Neb.  189;  Edminster  v.  Higgins,  6  Neb. 
269 ;  Metz  v.  State  Bank  etc.,  7  Neb.  171 ;  Jones  v.  Johnson  Harvester  Co., 
8  Neb.  451 ;  Lincoln  etc.  Assn.  v.  Haas,  10  Neb.  583;  Hooker  v.  Ham- 
mill,  7  Neb.  2a4;  Colt  v.  Du  Bois,  7  Neb.  394;  Dorsey  v.  Hall,  7  Neb.  465. 

2  Laws,  1887,  p.  362. 

»  Comp.  Laws,  1873,  vol.  1,  p.  82,  §§  252,  253.  See  Crosier  v.  Mc- 
Laughlin, 1  Nev.  348;  Virgin  v.  Brubaker,  4  Nev.  31;  Grellett  t;.  Heil- 
shorn,  4  Nev.  526. 

*  Comp.  Laws,  1873,  vol.  1,  §  254. 
^  Comp.  Laws,  1873,  vol.  1,  §  256. 

*  Arnold  v,  Stevenson,  2  Nev.  234. 


815  REGISTRY    LAWS.  §   606 

his  heirs  only,  unless  attested,  acknowledged,  and  recorded 
as  provided  by  statute/  "Any  deed  not  acknowledged  by 
the  grantor,  but  in  other  respects  duly  executed,  may  be 
recorded,  and  for  sixty  days  after  such  recording  shall  be 
as  effectual  as  if  duly  acknowledged."  ^  If  a  person  who 
has  a  deed  neglects  or  refuses  to  allow  it  to  be  recorded 
for  the  space  of  thirty  days,  after  being  requested  to  do  so 
in  writing  by  any  person  having  an  interest  in  the  estate, 
any  justice  upon  complaint  may  issue  his  warrant  and 
cause  such  person  to  be  brought  before  him  for  examina- 
tion; and  if  sufficient  cause  for  this  neglect  or  refusal  is 
not  showm,  the  justice  may  order  such  deed  to  be  re- 
corded, and  may  commit  the  holder  to  jail  until  the  order 
is  performed.^ 

§  606.  Xew  Jersey. — A  deed  is  void  and  of  no  effect 
against  a  subsequent  judgment  creditor  or  bona  fide  pur- 
chaser or  mortgagee  for  a  valuable  consideration  without 
notice,  unless  the  deed  is  recorded,  or  filed  for  record  with 
the  clerk  of  the  court  of  common  pleas  of  the  county  con- 
taining the  land,  within  fifteen  days  after  thetimethe  deed 
is  signed,  sealed,  and  delivered;  but  the  deed  is  neverthe- 
less valid  and  operative  between  the  parties  and  tiieir 
heirs.*  Where,  b}^  reason  of  a  failuie  to  recoi'd  a  deed 
within  fifteen  days  after  its  delivery,  title  to  the  property 
is  ncquired  by  a  third  party,  the  documentary  evidence 
will  entitle  such  party  to  recover  the  premises,  unless  the 
party  claiming  under  the  first  deed  can  show  that  the 
other  had  notice  of  it.  The  burden  of  proof  rests  upon 
the  party  who  claims  under  the  first  deed.^  Where  there 
are  two  deeds,   if  the  one  which  was   given  is  recorded 

'  Gen.  Laws,  1878,  p.  323,  c,  135,  §  4. 
''  Gen.  Laws,  1878,  ^  7. 
'  (ien.  La\v.s,  1878,  §  11. 

*  Revision  of  1877,  p.  155,  §  14  j  Law  of  1887,  ch.  164. 

*  Coleman  v.  Barklew,  3  Dutch.  357;  Lewis  v.  Hall,  3  Halst.  Oh.  107; 
Freeman  v.  Elmendorf,  3  Halst.  Ch.  475;  Vreeland  v.  Claflin,  9  Green, 
C.  E.  313;  Blair  v.  Wanl,  2  Stockt.  Ch.  119;  Holmes  v.  Stout,  2  btockt. 
Ch.  419;  San  bora  v.  Adair,  29  ^\  J.  Eq.  368. 


§§  607,  COS  REGISTRY    LAWS.  816 

within  fifteen  days  after  its  delivery,  it  will  have  priority 
over  the  second,  although  the  second  was  recorded  first/ 
A  deed  which  is  not  recorded  is  valid  as  against  an  at- 
taching creditor  having  notice  thereof  before  judgment.^ 

§  607.  N"ew  Mexico  Territory. — Deeds  are  recorded  in 
the  office  of  the  archives  of  the  county  where  the  real  estate 
is  situated.  After  registration  a  deed  gives  notice  of 
the  time  of  its  being  registered  to  all  persons  mentioned 
in  it,  and  all  purchasers  and  mortgagees  are  considered 
as  having  purchased  under  such  notice,  A  deed  is  not 
valid  except  as  to  the  parties  interested,  and  those  who 
have  actual  notice,  until  it  is  deposited  in  the  office  of 
the  clerk  to  be  registered.^  A  power  of  attorney  which 
has  been  recorded  can  be  revoked  only  by  a  revocation 
duly  recorded.* 

§  608.  New  York. — Deeds  are  conclusive  as  against 
subsequent  purchasers  from  the  grantor  or  from  his  heirs 
claiming  as  such,  except  against  subsequent  purchasers 
in  good  faith,  and  for  a  valuable  consideration,  who  shall 
acquire  a  superior  title  by  a  conveyance  that  shall  have 
been  first  duly  recorded.^  Different  sets  of  books  are  pro- 
vided for  the  recording  of  deeds  and  mortgages;  in  one 
of  these,  all  conveyances  absolute  in  their  terms,  and  not 
intended  as  mortgages  or  as  securities  in  the  nature  of 
mortgages,  are  to  be  recorded,  and  in  the  other  set  such 
mortgages  and  securities  shall  be  recorded.  A  deed, 
which  by  any  other  instrument  in  writing  shall  be  in- 

1  Den  V.  Eechman,  1  Green  (13  N.  J.  L.),  43. 

*  Garwood  v.  Garwood,  4  Halst.  193.  See,  also,  Dielil  v.  Page,  2  Green, 
Ch.  143;  Cornelius  v.  Giberson,  1  Dutch.  1;  Losey  v.  Simpson,  3  Stockt. 
Ch.  246:  Lee  v.  Woodworth,  2  Green  Ch.  37;  Hoy  v.  Bramhall,  19  N.  j. 
Eq.  564;  97  Am.  Dec.  687 ;  Nichols  v.  Peak,  1  Beasl.  70;  Wells  v.  Wright, 
7  Halst.  131;  Van  Doren  v.  Robinson,  1  Green,  C.  E.  256;  Mellon  v. 
•Mulvey,  8  Green,  C.  E.  198;  Annini;.  Annin,  9  Green,  0.  E.  185. 

2  Gen.  Laws,  1880,  p.  236,  c.  44,  §§  14-16.     Laws  of  1887,  c.  10. 

*  Gen.  Laws,  1880,  §  19, 

^  Rev.  Stats.,  vol.  2,  p.  1119,  §  165;  Rev.  Stats.,  vol.  2,  p.  1138,  §  1; 
Fay's  Dig.  of  Laws,  187G,  vol.  1,  p.  580. 


817  REGISTRY    LAWS.  §  609 

tended  only  as  a  mortgage,  though  it  may  be  an  absolute 
conveyance  in  form,  shall  be  treated  as  a  mortgage;  and 
the  person  for  whose  benefit  the  deed  is  made  will  not 
derive  any  advantage  from  its  registration,  unless  every 
writing  operating  as  a  defeasance  or  explanatory  of  its 
character  as  a  mortgage  is  also  recorded  with  the  deed 
and  at  the  same  time/  A  copy  of  a  record,  or  of  a  re- 
corded deed,  attested  in  such  manner  as  would  entitle  it 
to  be  read  in  evidence,  may,  if  the  loss  of  the  original  and 
the  record  be  proven,  be  again  recorded,  and  such  record 
shall  have  the  same  effect  as  the  original  record/ 

§  609.  North  Carolina. — A  deed  is  not  good  and  avail- 
able in  law  unless  it  is  acknowledged  and  proved  in  the 
manner  required  by  law,  and  registered  in  the  county 
where  tbe  land  lies  within  two  years  after  the  date  of  the 
deed.  All  deeds  thus  executed  and  registered  are  valid 
without  livery  of  seisin  or  other  ceremony.^  Deeds  of 
gift  must  also  be  registered  within  two  years  after  exe- 
cution, else  they  are  void.^     A  deed  of  trust  or  mortgage 

^  Eev.  Stats.,  vol.  2,  p.  1138,  §§  2,  3. 

*  Rev.  Stats.,  vol.  2,  p.  1148,  §  51 ;  Fay's  Dig.,  vol.  1,  p.  586,  §  50  j  3  Rev. 
Stats.,  7th  ed.,  pp,  2215,  2216.  See,  generally,  Newton  v.  McLean,  41 
Barb.  285 ;  Fort  v.  Burch,  6  Barb.  60 ;  Schutt  v.  Large,  6  Barb.  373 ;  Trus- 
cott  V.  King,  6  Barb.  346 ;  Westbrook  v.  Gleason,  79  N.  Y.  23 ;  Lacustrine 
etc.  Co.  V.  Lake  Guano  etc.  Co.,  82  N.  Y.476;  Hoyt  v.  Thompson,  5N.  Y 
347;  Judson  v.  Dada,  79  N.  Y.  373;  Page  v.  Waring,  76  N.  Y.  463. 

'  Code,  vol.  1,  p.  490,  §  1245 :  Code,  §§  1252,  1254.  See  Morris  v.  Ford,  2 
Dev.  Eq.  412;  Walker  v.  Coltraine,  6  Ired.  Eq.  79;  Doak  v.  State  Bank,  6 
Ired.  309;  Osborne  v.  Ballew,  7  Ired.  415 ;  Williams  v.  Griffin,  4  Jones,  31 ; 
AValston  v.  Brasswell,  1  Jones  Eq.  137;  Freeman  v.  Hatley,  3  Jones,  115; 
Johnson  v.  Pendergrass,  4  Jones,  479;  Latham  v.  Bowen,  7  Jones,  337; 
Hare  v.  Jernigan,  76  N.  C.  471;  King  v.  Portis,  81  N.  C.  382;  McMillan 
V.  Edwards,  75  N.  C.  81;  Salms  v.  Martin,  63  N.  C.  608;  Linker  v.  Long, 
64  N.  C.  296;  Hogan  v.  Strayhorn,  65  N.  C.  279;  Love's  Executors  v. 
Habbin,  87  N.  C.  249 ;  Ivevy  v.  Granberry,  66  N.  C.  223 ;  Triplett  v.  With- 
erspoon,  74  N.  C.  475;  Riggan  v.  Green,  80  N.  C.  286;  30  Am.  Rep.  77; 
Henley  v.  Wilson,  81  N.  C.  405 ;  Davis  v.  Inscoe,  84  N.  C.  396;  Mosely  v. 
Mosely,  87  N.  C.  69;  Isler  v.  Foy,  66  N.  C.  547;  Paul  v.  Carpenter,  70 
- .  C.  502;  Wilson  v.  Sparks,  72  N.  C.  208;  Starke  v.  Etheridge,  71  N.  C. 
-•  10;  Holmes  v.  Marshall,  72  N.  C.  37;  Buie  v.  Carver,  75  N.  C.  559;  Mc- 
Call  V.  Wilson,  101  N.  C.  598. 

*  Code,  vol.  1,  p.  490,  >J  1252. 
Deem,  Vol.  I.— 52 


§  609  a  REGISTRY  LAWS.  818 

is  not  valid  at  law  to  pass  any  property  as  against  cred- 
itors or  purchasers  for  a  valuable  consideration  from  the 
donor  or  mortgagor,  but  from  the  time  of  registration  of 
such  deed  of  trust  or  mortgage  in  the  county  in  which 
the  land  is  situated.'  An  error  in  the  registration  of  an 
instrument  may  be  corrected  by  the  clerk  of  the  superior 
court,  upon  petition.'^ 

§  609  a.  North  Dakota. — Any  instrument  or  judg- 
ment affecting  the  title  to  or  possession  of  real  property 
may  be  recorded,  and  when  entitled  to  record  must  be 
recorded  by  the  register  of  deeds  of  the  county  in  which 
the  real  properly  affected  thereby  is  situated.  The  reg- 
ister is  required  in  all  cases  to  indorse  the  amount  of  his 
fee  for  the  recording  on  the  instruments  recorded.^  An 
instrument  is  considered  recorded  when  properly  acknowl- 
edged, or  proved  and  certified,  it  is  deposited  in  the  register's 
office  with  the  proper  officer  for  record.*  Grants  absolute 
in  terms  and  mortgages  are  to  be  recorded  in  separate 
books.^  A  conveyance  by  a  married  woman  has  the  same 
effect  as  if  she  was  unmarried,  and  may  be  acknowledged 

'  Code,  vol.  1,  §  1254.  See  Smith  i;.  Washington,  1  Dev.  Eq.  318; 
Skinner  v.  Cox,  4  Dev.  59;  Leggett  v.  Bullock,  Busb.  283;  Moore  v. 
Collins,  4  Dev.  384;  Dewey  v.  Littlejohn,  2  Ired.  Eq.  495;  McKiunon  v. 
McLean,  2  Dev.  &  B.  79;  M(?tts  v.  Bright,  4  Dev.  &  B.  173;  32  Am.  Dec. 
683;  Norwood  v.  Marrow,  4  Dev.  &  B.  442;  Barnett  v.  Barnett,  1  Jones 
Eq.  221;  Simpson  v.  Morris,  3  Jones,  411;  Barrett  v.  Cole,  4  Jones,  40; 
Green  v.  Kornegay,  4  Jones,  66 ;  67  Am,  Dec.  261 ;  Dukes  v.  Jones,  6 
Jones,  14;  Newell  v.  Taylor,  3  Jones  Eq.  374;  Saunders  v.  Ferrell,  1  Ired. 
97;  Halcombe  v.  Eay,  1  Ired.  340;  Doak  v.  State  Bank,  6  Ired.  309; 
Johnson  v.  Malcolm,  6  Jones  Eq.  120 ;  Moring  v.  Dickerson,  85  N.  C.  466 ; 
Parker  v.  Scott,  64  N.  C.  118;  McCoy  v.  Wood,  70  N.  C.  125;  Robinson 
V.  Willoughby,  70  N.  C.  358;  Blevins  v.  Barker,  75  N.  C.  436;  Edwards 
V.  Thompson,  71  N.  0.  177;  Moore  v.  Ragland,  74  N.  C.  343;  Starke  v. 
Etheridge,  71  N.  C.  340;  Harris  v.  Jones,  83  N.  0.  317;  King  v.  Portis, 
77  N.  C.  25 ;  Todd  v.  Outlaw,  79  N.  C.  235 ;  Capehart  v.  Biggs,  77  N.  C. 
261 ;  Purnell  v.  Vaughan,  77  N.  C.  268;  Beaman  v.  Simmons,  76  N.  C.  43. 

*  Code,  vol.  1,  §  1266.  See  Jones  v.  Physioc,  1  Dev.  &  B.  173;  Old- 
bam  V.  Bank,  85  N.  C.  240. 

»  Rev.  Code  1895,  §§  3.)63-3567. 

*  Rev.  Code  1895,  §  3568. 
6  Rev.  Code  1895,  ^  3570. 


819  REGISTRY    LAWS.  §  610 

in  the  same  manner/  Officers  taking  and  certifying 
acknowledgments  or  proof  of  instruments  for  record  must 
authenticate  their  certiticates  by  affixing  to  them  their 
signatures,  followed  by  the  names  of  their  offices;  also, 
their  seals  of  office,  if  by  the  laws  of  the  territory,  State  or 
country  where  the  acknowledgment  or  proof  is  taken,  or 
by  authority  of  which  they  are  acting,  they  are  required 
to  have  official  seals.  Judges  and  clerks  must  authenti- 
cate their  certificates  by  affixing  to  them  the  seal  of  the 
proper  court,  and  mayors  of  cities  by  the  seal  thereof.- 
Every  conveyance  of  real  property  other  than  a  lease  for 
a  term  not  exceeding  one  year,  is  void  as  against  subse- 
quent purchasers  or  encumbrancers,  including  an  assignee 
of  a  mortgage,  lease,  or  other  conditional  sale  of  the  same 
property,  or  any  part  thereof,  in  good  faith  and  for  a  val- 
uable consideration,  whose  conveyance  is  first  duly  re- 
corded.* The  term  "conveyance,"  as  used  in  the  code, 
embraces  every  instrument  in  writing  by  wdiich  any 
estate  or  interest  in  real  property  is  created,  aliened, 
mortgaged,  or  encumbered,  or  by  which  the  title  to  any 
real  property  may  be  affected  except  wills,  statutory  con- 
tracts for  the  sale  or  purchase  of  real  property  and  powers 
of  attorney.*  No  instrument  conferring  a  power  to  con- 
vey or  execute  instruments  affecting  real  property  which 
has  been  recorded  is  revoked  by  any  act  of  the  party  by 
whom  it  was  executed,  unless  the  instrument  containing 
such  revocation  is  also  acknowledged  or  proved,  certified 
and  recorded  in  the  same  office  in  which  the  instrument 
containing  the  power  was  recorded.* 

§  610.  Ohio. — Powers  of  attorney  must  be  recorded 
in  the  office  of  the  recorder  of  the  county  where  the  land 
lies,  prior  to  the  execution  of  the  deed  made  in  pursuance 

1  Rev.  Code  1895,  §  3578. 
»  Kc'V.  Co<Je  1895,  §  3586. 
»  U«v.  Code  1895,  §  3594. 
*  Rev.  Code  1895,  §  3595. 
"  Rev.  Code  1895,  §  3596. 


§§  611,  611  a  REGISTRY    LAWS.  820 

of  it.'  A  deed  must  be  recorded  within  six  months  from 
its  date.  If  not  so  recorded,  it  is  deemed  fraudulent,  so 
far  as  relates  to  any  subsequent  bona  fide  purchaser,  hav- 
ing at  the  time  of  purchase  no  knowledge  of  the  existence 
of  the  deed.  The  deed  may,  however,  be  recorded  after 
the  expiration  of  this  time,  and  from  the  date  of  such 
record  shall  be  notice  to  any  subsequent  purchaser.^ 

§  611.  Oreg-on. — A  deed  is  considered  as  recorded  at 
the  time  it  is  received  by  the  recorder  for  record.^  Every 
deed  which  is  not  recorded  within  five  days  after  its  exe- 
cution is  void  against  any  subsequent  purchaser  in  good 
faith  and  for  a  valuable  consideration,  whose  conveyance 
is  first  duly  recorded.^  A  deed  absolute  in  terms,  de- 
feasible by  a  deed  of  defeasance,  is  not  affected  as  against 
any  person  other  than  the  maker  of  the  defeasance,  or 
his  heirs  or  devisees,  or  persons  having  actual  notice,  un- 
less the  defeasance  is  recorded  in  the  office  of  the  recorder 
of  the  county  where  the  land  lies.^ 

§  611  a.  Oklahoma  Territory. — Every  conveyance  of 
real  property,  other  than  a  lease  not  exceeding  one  year, 
is  void  as  against  subsequent  purchasers  and  encum- 
brancers, including  an  assignee  of  a  mortgage,  lease,  or 
other  conditional  sale  of  the  property,  or  any  part  thereof, 
who  becomes  such  in  good  faith  and  for  a  valuable  con- 
sideration, and  whose  conveyance  is  first  duly  recorded. 

1  Rev.  Stats.  1880,  vol.  1,  p.  1033,  §  4132.     Laws  of  1885,  p.  230. 

2  Rev.  Stats.  1880,  vol.  1,  p.  1034,  §  4134.  See  Doe  v.  Bank  of  Cleve- 
land, 3  McLean,  140;  Lessee  of  Cunningham  v.  Buckingham,  1  Ohio, 
265;  Lessee  of  Allen  v.  Parish,  3  Ohio,  107;  Smith  v.  Smith,  13  Ohio 
St.  532;  Northrup's  Lessee  v.  Brehmer,  8  Ohio,  392;  Leiby's  Executors 
V.  Wolf,  10  Ohio,  83 ;  Stansell  v.  Roberts,  13  Ohio,  148 ;  42  Am.  Dec.  193 ; 
Mayham  v.  Coombs,  14  Ohio,  428;  Lessee  of  Irvin  v.  Smith,  17  Ohio, 
226;  Price  v.  Methodist  Episcopal  Church,  4  Ohio,  515;  Spader  v.  Law- 
ler,  17  Ohio,  371;  49  Am.  Dec.  461;  Bloom  v.  Noggle,  4  Ohio  St.  45; 
Bercaw  v.  Cockerill,  20  Ohio  St.  163. 

*  Gen.  Laws,  p.  518,  §  24.  But  the  time  during  which  deeds  were  al- 
lowed to  be  filed  was  changed  in  1885. 

*  Gen.  Laws,  §  26. 

*  Gen.  Laws,  §  28.     Annotated  Laws,  1887,  §§  3024-3029. 


821  REGISTRY    LAWS.  §§  612,  613 

Dower  and  curtesy  are  abolished.  Conveyances  must  be 
recorded  with  the  register  of  deeds  of  the  county  in  which 
the  land  affected  thereby  is  situated. 

§  612.  Pennsylvania.  —  Deeds  executed  within  the 
State  should  be  recorded  in  the  office  for  recording  deeds 
in  the  county  in  which  the  land  is  situated  within  six 
months  after  execution;  and  if  not  so  recorded  they  will 
be  adjudged  fraudulent  and  void  against  an}'-  subsequent 
purchaser  or  mortgagee  for  valuable  consideration,  unless 
recorded  before  the  proving  and  recording  of  the  deed  or 
conveyance  under  which  the  subsequent  purchaser  or 
mortgagee  claims.^  If  executed  without  the  State,  they 
must  be  so  recorded  within  twelve  months  after  their 
execution." 

§  613.  Rhode  Island. — Deeds,  mortgages,  and  deeds 
of  trust  are  void,  unless  they  are  duly  acknowledged  and 
recorded;  but,  between  the  parties  and  their  heirs,  they 
are  nevertheless  valid  and  binding.^     They  are  recorded 

1  Purdon's  Dig.  (Brightle'y),  p.  321,  §  71.  See  as  to  statute  relating  to 
Philadelphia  only,  Purdon's  Ann.  Dig.,  p.  2110,  §  5. 

=*  Purdon's  Dig.  (Brightley),  §  72.  See  on  the  question  of  notice,  Chew 
V.  Barnett,  11  Serg.  &  R.  389;  Harris  v.  Bell,  10  Serg.  &  R.  39;  Krider  v. 
Lafferty,  1  Whart.  303;  Randall  v.  Silverthorn,  4  Barr.  173;  Hethering- 
ton  V.  Clark,  6  Casey,  393;  Boggs  v.  Varner,  6  Watts  &  S.  469;  Miller  v. 
Cresson,  1  Watts  &  S.  284;  Green  v.  Drinker,  7  Watts  &  S.  440;  Parke 
V.  Chadwick,  8  Watts  &  S.  96 ;  Kerns  v.  Swope,  2  Watts,  75 ;  Epley  v 
Witherow,  7  Watts,  167;  Lewis  v.  Bradford,  10  Watts.  67;  Ranking] 
Porter,  7  Watts,  387.  As  to  the  parties  bound  by  an  unrecorded  convey- 
ance, see  Nice's  Appeal,  54  Pa.  St.  200;  Adams'  Appeal,  1  Pen.  &,  W.  447; 
Speer  v.  Evans,  47  Pa.  St.  141 ;  Mellon's  Appeal,  32  Pa.  St.  121  ;  Britton's 
Appeal,  45  Pa.  St.  172.  Bona  fide  purchasers:  Hoffman  v.  Strohecker, 
7  Watts,  90 ;  32  Am.  Dec.  740 ;  Poth  v.  Anstatt,  4  Watts  &  S.  307 ;  Bracken 
V.  Miller,  4  Watts  &  S.  102;  Union  Canal  Co.  v.  Young,  1  Whart.  410, 
4.32;  .",0  Am.  Dec.  212;  Sailor  v.  Hertzog,  4  Whart.  264;  Jacques  t;.  Weeks, 
7  Watts,  261 ;  Snider  v.  Snider,  3  Phila.  160;  Plummer  v.  Robertson,  6 
Serg.  &  R.  179.  On  the  question  of  priority,  see  Brooke's  Appeal,  64  Pa. 
St.  127;  Lightner  v.  Mooney,  10  Watts,  407;  Bratton's  Appeal,  8  Pa.  St! 
164;  Foster's  Ai)peal,  3  Pa.  St.  79;  Ebner  v.  Goundie,  5  Watts  &  S.  49; 
Safe  Dcfiosit  &  Trust  Co.  i;.  Kelly,  159  Pa.  St.  82;  Fries  v.  Null,  154  Pa. 
St.  573. 

'  Public  Stats.  1882,  p.  443,  c.  173,  §  4 ;  Gen.  Stats.  1872,  p.  .350,  §  4. 
See  Harris  v.  Arnold,  1  R.  I.  125;  Thurber  v.  Dwyer,  10  R.  I.  355. 


§§  614,  G14  a  REGISTRY    LAWS.  822 

in  the  office  of  the  town  clerk  of  the  town   where  the 
land  lies. 

§  614.  South  Carolina. — Conveyances,  if  made  within 
the  State,  must  be  recorded  within  six  months  from  their 
execution;  if  by  a  resident  of  any  other  State,  within 
twelve  months;  and  if  made  without  the  limits  of  the 
United  States,  then  within  two  years.  If  not  recorded 
within  these  periods,  respectively,  they  are  valid  and  legal 
only  as  to  the  parties  themselves  and  their  heirs,  but  are 
void  and  incapable  of  defeating  the  right  of  persons 
claiming  as  creditors,  or  under  subsequent  purchases  re- 
corded in  the  manner  prescribed  by  statute.^  A  mortgage 
is  not  valid  so  as  to  affect  the  rights  of  subsequent  credit- 
ors or  purchasers  for  a  valuable  consideration  without 
notice,  unless  it  is  recorded  within  sixty  days  from  its 
execution.^  The  conveyance  (except  original  grants)  first 
registered  is  deemed  to  be  the  first  conveyance,  notwith- 
standing the  execution  of  any  conveyance  not  before 
registered.^ 

§  614  a.  South  Dakota. — All  instruments  affecting 
the  title  to  real  property  must  be  recorded  with  the  reg- 
ister of  deeds  of  the  county  in  which  the  property  lies, 
and  every  such  conveyance  other  than  a  lease  for  a  term 
of  years  is  void  as  against  a  subsequent  purchaser  or  en- 
cumbrancer in  good  faith  and  for  a  valuable  consideration 
whose  conveyance  is  first  recorded.  The  registry  laws 
include  assignments  of  mortgages,  leases,  and  conditional 
sale.^  It  is  not  necessary  to  the  validity  of  a  deed  that  it 
should  be  sealed  or  have  attesting  witnesses.^ 

1  Rev.  Stats.  1873,  p.  422,  §  1.     A.  A.  1876;  16  Stat.  92. 

="  Rev.  Stats.  1873,  §  2.     But  see  change  by  Rev.  Stats.  1893,  §  1776. 

3  Rev.  Stats.  1873,  p.  424,  §  6.  A.  A.  1876;  16  Stat.  92.  See  Williams 
V.  Beard,  1  S.  C.  309;  McFall  v.  Sherrard,  Harp.  295;  Massey  v.  Thomp- 
son, 2  Nott  &  McO.  105;  Steele  v.  Mansell,  6  Rich.  437 ;  Tart  v.  Crawford, 
1  McCord,  265;  Dawson  v.  Dawson,  Rice  Eq.  243;  Boyce  v.  Shiver,  3 
S.  C.  515;  Stokes  v.  Hodges,  11  Rich.  Eq.  135. 

*  C.  0.  §§  651,  671;  C.  L.  .3272,  3293. 

^  C.  C.  §  622;  0.  L.  §  3245. 


823  REGISTRY    LAWS.  §§   615,  616 

§  615.  Tennessee — Deeds  are  registered  in  the  county 
where  the  hmd  lies,  unless  it  lies  partly  in  two  or  more 
counties,  and  then  it  may  be  registered  in  either.  If  the 
deed  embraces  several  tracts  of  land  lying  in  different 
counties,  it  shall  be  registered  in  each  of  the  counties 
where  any  of  the  tracts  lie.  A  deed  is  not  good  and  avail- 
able in  law  as  to  strangers,  unless  it  is  acknowledged  and 
registered  by  the  register  of  the  county  where  the  land 
lies.  Deeds  have  effect  between  the  parties  and  their 
heirs  and  representatives  without  registration;  but  as  to 
other  persons  who  have  not  actual  notice,  only  from  the 
time  they  are  noted  for  registration,  on  the  register-books 
of  the  register,  unless  otherwise  expressly  provided.' 
When  so  registered,  they  are  notice  to  all  the  world  from 
the  time  at  which  they  are  noted  for  registration.  The 
deed  first  registered  or  noted  for  registration  has  prefer- 
ence over  one  of  earlier  date,  but  noted  for  registration 
subsequently,  unless  in  a  court  of  equity  it  is  proven  that 
the  party  claiming  under  the  subsequent  deed  had  full 
notice  of  the.  earlier  one.'  Conveyances  not  so  acknowl- 
edged and  registered,  or  noted  for  registration,  are  null 
and  void  as  against  existing  or  subsequent  creditors  of, 
or  bona  fide  purchasers  from,  the  makers  without  notice.^ 

§  616.  Texas. — Deeds  are  void  as  to  all  creditors  and 
subsequent  purchasers  for  valuable  consideration  without 
notice,  unless  they  are  acknowledged  and  filed  with  the 
recording  officer,  to  be  recorded  as  required  by  law;  but 
they  are  valid  as  between  the  parties  and  their  heirs,  and 
as  to  all  subsequent  purchasers  with  notice,  or  without 
valuable  consideration.^     Deeds  take  effect  as  to  all  sub- 

1  Stats.  1871  (Thompson  &  Steger),  §  2072. 

*  Notice  to  a  trustee  is  notice  to  the  principal:  Myers  v.  Ross,  3  Head, 
59. 

*  Stats.  1871  (Thompson  v.  Steger),  ^  2005,  2032,  2072,2073,  2075; 
Code  M.  &  V.  2887,  2888.  See  Thomas  v.  Blackemore,  5  Yerg.  113,  124  ; 
May  V.  McKeenon,  6  Humph.  209;  Vance  v.  McNairy,  3  Yerg.  176;  24 
Am.  Dec.  553 ;  Shields  v.  Mitciiell,  10  Yerg.  8;  Hays  v.  McGuire,  8  Yerg.  92. 

*  Rev.  Stats.  1879,  p.  625,  §  4332;  Paschal's  Dig.,  vol.  l,p.  836,  §  4988. 


§§   617,  618  REGISTRY   LAWS.  824 

sequent  purchasers,  for  a  valuable  consideration,  without 
notice,  and  as  to  all  creditors,  from  the  time  when  the}- 
are  delivered  to  the  clerk  for  record,  and  from  that  time 
only.^ 

§  617,  Utah. — Deeds  must  be  attested  by  one  credible 
witness  and  acknowledged  before  they  are  entitled  to 
record.  They  are  valid  as  against  the  parties  and  those 
who  have  actual  notice  without  registration,  but  to  im- 
part notice  to  third  persons  must  be  recorded.  Deeds  not 
recorded  are  void  against  subsequent  purchasers  in  good 
faith  and  for  a  valuable  consideration,  when  such  subse- 
quent purchasers  have  their  deeds  first  duly  recorded. 
Notice  of  the  contents  of  a  deed  is  given  to  every  person 
from  the  time  it  is  filed  for  record.  A  power  of  attorney, 
when  recorded,  can  be  effectually  revoked  only  by  having 
the  revocation  also  recorded.^ 

§  618.  "Vermont. — Deeds  must  be  attested  by  two  or 
more  witnesses,  and  are  recorded  in  the  clerk's  office  of  the 
town  where  the  lands  lie.  If  there  is  no  town  clerk  they 
are  recorded  by  the  clerk  of  the  county.^  A  deed  is  not 
effectual  in  law  to  hold  the  land  conveyed  against  any 
person  but  the  grantor  and  his  heirs,  unless  it  is  acknowl- 
edged and  recorded  as  provided  by  statute.*  A  deed  made 
under  a  power  of  attorney  has  no  effect,  and  is  not  ad- 
missible in  evidence,  unless  such  power  of  attorney  is 
signed,  sealed,  attested,  and  acknowledged  and  recorded 
in  the  office  where  the  deed  is  required  to  be  recorded.^ 

1  Rev.  Stats.  1879,  p.  626,  §  4334. 

="  Laws,  1853,  c.  75.     See  Laws,  1867,  c.  28. 

»  Eev.  Laws,  1880,  pp.  338,  339,  §§  1927,  1929. 

*  Rev.  Laws.  1880,  p.  339,  ^  1931.  See  Ludlow  v.  Gill,  Chip.  N.  63; 
Morris  v.  Ludlow,  1  Chip.  D.  49;  Barney  v.  Currier,  1  Chip.  D.  315;  6 
Am.  Dec.  739;  Stewart  v.  Thompson,  3  Vt.  255;  Brackett  v.  Wait,  6  Vt. 
411;  Harrington  v.  Gage,  6  Vt.  532;  Corliss  v.  Corliss,  8  Vt.  373;  Pratt 
V.  Bank  of  Bennington,  10  Vt.  293 ;  33  Am.  Dec.  201 ;  Barnard  v.  Whip- 
ple, 29  Vt.  401;  70  Am.  Dec.  422;  Sterling  v.  Baldwin,  42  Vt.  306; 
Sprague  v.  Rockwell,  51  Vt.  401. 

*  Rev.  Laws,  1880,  §  1935.     See  Oatman  v.  Fowler,  43  Vt.  462. 


825  REGISTRY   LAWS.  §§  620-622 

§  619.  Virgrinia. — Deeds  of  trust  and  mortgages  are  not 
effectual  against  creditors  and  subsequent  purchasers  for 
a  valuable  consideration  without  notice,  except  from  the 
time  at  which  they  are  duly  admitted  to  record.^  Every 
contract  relating  to  real  estate  shall,  from  the  time  it  is  duly 
admitted  to  record,  be  as  valid  against  creditors  and  pur- 
chasers as  if  the  contract  were  a  deed  conveying  the  estate.^ 

§  620.  "Washington. — Conveyances  are  valid  as  against 
bona  fide  purchasers  from  the  time  they  are  filed  for  rec- 
ord, and  when  so  filed  the  record  is  filed  to  give  notice  to 
all  the  world.'  When  a  deed  is  made  by  a  commissioner 
appointed  by  the  court  the  conveyance  shall  be  recorded 
in  the  office  in  which  by  law  it  should  have  been  if  made 
by  the  parties  whose  title  is  conveyed  by  it.* 

§  621.  West  Virginia. — Deeds  are  void  as  to  creditors 
and  subsequent  purchasers  for  a  valuable  consideration 
without  notice  until  they  are  duly  admitted  to  record  in 
the  county  where  the  property  embraced  in  the  deed  is 
situated.  Where  two  or  more  instruments  affecting  the 
same  property  are  admitted  to  record  in  the  same  county 
on  the  same  day,  the  one  first  admitted  to  record  has 
priority  as  to  the  property  situated  in  such  county.  By 
the  terms  "creditors"  and  "purchasers"  are  embraced  not 
only  those  from  the  grantor,  but  also  those  who,  but  for 
the  deed  or  other  conveyance,  would  have  title  to  the  prop- 
erty conveyed,  or  a  right  to  subject  it  to  the  payment  of 
their  debts.^ 

§  622.  Wisconsin. — Every  conveyance  which  is  not 
recorded  as  provided  by  law  is  void  as  against  subsequent 

1  Code,  1873,  c.  114,  §^  4-9;  Code.  §§  2463,  2464,  2467.  See  Beverly 
V.  Ellis,  1  Rand.  102;  Beck's  Administrators  v.  De  Baptists,  4  Leigh,  349; 
Bird  V.  Wilkinson,  4  Leigh,  266;  Lane  v.  Mason,  5  Leigh,  520;  Glaze- 
brook's  Administrators  v.  Ragland's  Administrators,  8  Gratt.  344;  Mc- 
Clure  V.  Thistle's  Executors,  2  Gratt.  182. 

»  Code,  1887,  §  2464. 

'  Laws  of  1877,  p.  312;  1  S.  &  C,  §  1439. 

*  Co<le  of  Washington,  1896,  ^  4981. 

*  Code,  1887,  c.  74,  §§  b,  8,  9. 


§§  623,  624  KEGiSTRY  LAWS.  825  a 

purchasers  in  good  faith  and  for  a  valuable  consideration, 
whose  conveyances  shall  be  first  duly  recorded.^  A  deed 
absolute  in  form  is  not  defeated  by  a  deed  of  defeasance 
as  against  any  person  other  than  the  maker  of  the  defea- 
sance, or  his  heirs  or  devisees,  or  persons  having  actu'al 
notice,  unless  the  defeasance  is  recorded  in  the  office  of 
the  register  of  deeds  of  the  county  where  the  lands  are.^ 
A  power  of  attorney,  when  recorded,  can  be  revoked  ef- 
fectuall}^  only  by  recording  the  instrument  of  revocation.^ 
A  deed  executed  in  1868  passes  the  legal  title  to  land  in 
Wisconsin,  though  not  acknowledged  or  attested,  as  those 
formalities  are  only  essential  to  entitle  it  to  record.* 

§  623.  Wyoming-. — Conveyances  under  seal  attested 
by  two  or  more  witnesses,  and  properly  acknowledged, 
are  recorded  in  the  office  of  the  register  of  deeds  of  the 
county  in  which  the  land  is  situated,  within  three  months 
from  the  date  of  the  instrument.  All  conveyances  so  re- 
corded are  notice  to  any  subsequent  purchaser,  from  the 
time  the  instrument  is  delivered  at  the  office  of  the  regis- 
ter of  deeds  for  registration.^ 

§  624.  Eflfect  of  statutes  giving  time  to  record  deeds 
— Valid  from  delivery. — Where,  by  the  provisions  of  the 
statute,  a  purchaser  is  allowed  a  specified  time  after  the 

1  Rev.  Stats.,  1878,  p.  641,  §  2241.  See  Evarts  v.  Agnes,  4  Wis.  343; 
65  Am.  Dec.  314;  Evarts  v.  Agnes,  6  Wis.  453;  Hodson  v.  Treat,  7  Wis. 
263;  Myrick  i;.  McMillan,  13  Wis.  188;  Deuster  v.  McCamus,  14  Wis. 
307;  Stewart  v.  McSvveeney,  l4  Wis.  468;  Straiglit  v.  Harris,  14  Wis. 
509;  Gee  v.  Bolton,  17  Wis.  604;  Fery  v.  Ffeiffer,  18  Wis.  510;  Wyman  v. 
Carter,  20  Wis.  107  ;  Ely  v.  Wilcox,  20  Wis.  523;  91  Am.  Dec.  436;  Shove 
V.  Larsen,  22  Wis.  142;  Schnee  v.  Schnee,  23  Wis.  377;  99  Am.  Dec.  183; 
Hay  V.  Hill,  24  Wis.  235 ;  Stevens  v.  Brooks,  24  Wis.  326 ;  Wickes  v.  Lake, 
25  Wis.  71;  The  International  Life  Ins.  Co.  v.  Scales,  27  Wis.  640;  Smith 
V.  Garden,  28  Wis.  685 ;  Fallas  v.  Pierce,  30  Wis.  443 ;  Gilbert  v.  Jess,  31 
AVis.  110;  Hoyt  v.  Jones,  31  Wis.  389;  Ehle  v.  Brown,  31  Wis.  405;  Aus- 
tin V.  Holt,  32  Wis.  478 ;  Quinlan  v.  Pierce,  34  Wis.  304. 

2  Rev.  Stats.,  §  2243. 
•'  Rev.  Stats.,  §  2246. 

*  Leinenkugel  v.  Kehl,  73  Wis.  238. 

»  Compiled  Laws,  1876,  p.  284,  c.  40,  §§  1,  3;  Rev.  Stats.,  §§  15-21. 


825b  EEGISTRY   LAWS.  §  625 

execution  of  the  deed  in  which  to  procure  its  registration, 
the  deed  takes  effect  as  it  would  if  such  statutes  did  not 
exist;  that  is,  from  its  delivery.  It  is  valid  from  delivery 
as  against  subsequent  purchasers.  A  deed  thus  recorded 
within  the  statutory  period  will  prevail  over  the  deed  of 
a  person  who  purchased  the  property  after  the  execution 
of  the  former  deed,  but  before  it  was  filed  for  registration.^ 
Speaking  of  the  statute  of  Mississippi,  which  allows  three 
months  after  execution  for  the  registration  of  convey- 
ances, except  deeds  of  trust  and  mortgages,  and  provides 
that  if  so  recorded  they  shall  be  valid  from  delivery,  the 
court  say:  "The  lodging  with  the  clerk  of  any  of  the 
instruments  enumerated  in  the  act  for  record  (except 
deeds  of  trust  and  mortgages),  within  three  months  after 
execution,  makes  such  instruments  valid  from  date  of 
delivery,  so  as  to  prevail  against  a  purchaser  or  creditor 
who  has  acquired  a  right  subsequent  to  the  date  of  deliv- 
ery, although  prior  to  the  time  of  deposit  of  the  instru- 
ment with  the  clerk.  In  other  words,  filing  the  deed  with 
the  clerk  within  three  months  makes  the  benefit  of  regis- 
tration relate  back  to  the  day  of  delivery,  so  as  to  prevail 
against  intermediate  conveyances  or  encumbrancers. 
Deeds  of  trust  and  mortgages,  however,  have  no  relation 
back  to  any  act  or  date;  and  notice  to  subsequent  pur- 
chasers and  creditors  begins  from  the  time  they  are  filed 
with  the  clerk  for  record.  If  the  instruments  to  which 
three  months  are  allowed  for  record  are  not  registered 
within  the  time,  they  operate  to  give  notice  from  the  time 
they  are  lodged  with  the  clerk."  ^ 

§  625.  Protection  of  grantee. — These  statutes  giving 
a  specified  time  from  the  execution  of  a  conveyance 
in  which  to  record  it  are  intended  for  the  benefit  of 
the    grantee.     He    may,   by    recording    his    deed   within 

>  Dale  V.  Arnold,  2  Bibb,  605 ;  Claiborne  v.  Holmes,  51  Miss.  146.  See, 
also,  Stanzfli  v.  Roberts,  13  Ohio,  148;  43  Am.  Dec.  193;  Mayham  v. 
Coombs,  14  Ohio,  428. 

»  Claiborne  v.  Holmes,  61  Miss.  146,  150,  per  Simrall,  J. 


§  625  REGISTRY    LAWS.  825  C 

the  stipulated  time,  have  it  take  effect  from  its  execu- 
tion. If  he  neglects  to  file  it  for  record  within  this 
time,  it  is  not  void.  In  a  ease  in  Indiana,  it  was  con- 
tended that  a  deed  should  not  go  upon  the  records, 
unless  placed  there  within  the  time  specified  by  statute, 
and  that  it  would  not  be  notice  to  one  who  should  pur- 
chase the  property  after  it  was  recorded.  But  the  court 
answered:  "This  construction  we  cannot  adopt;  we  think 
a  man  could  not  be  considered  as  standing  in  the  position 
of  a  purchaser  in  good  faith,  who  should  buy  and  take  a 
title  in  view  of  a  recorded  deed  of  an  already  outstanding 
title;  but  that  he  would  be  buying  with  notice,  that  is 
the  record  would  be  notice  to  subsequent  purchasers."^ 
The  Supreme  Court  of  the  United  States  passing  on  the 
statute  of  South  Carolina  allowing  conveyances  to  be  record- 
ed within  three  months  from  their  date  said:  "With  regard 
to  the  position  insisted  upon  in  the  answers,  that  the  ante- 
nuptial settlement  was  void  for  the  failure  to  record  it  within 
three  months  from  its  date  in  conformity  with  the  law  of 
South  Carolina:  that  position,  however  maintainable  it 
might  be,  so  far  as  the  instrument  was  designed  to  oper- 
ate by  mere  legal  or  constructive  effect  on  creditors  and 
purchasers,  becoming  such  before  it  was  recorded,  or  in 
the  event  of  its  never  being  recorded,  cannot  be  supported 
to  the  extent  that,  by  the  failure  to  record  it  within  the 
time  prescribed  by  the  statute,  the  deed  would  thereby  be 
void  to  all  intents  and  purposes.  Such  a  deed  would, 
from  its  execution,  be  binding  at  common  law  inter  partes, 
though  never  recorded;  and  if,  after  the  expiration  of  the 
time  prescribed  by  statute,  it  should  be  reacknowledged 
and  then  recorded,  either  upon  such  reacknowledgment 
or  upon  proof  of  witnesses,  it  would,  from  the  period  of 
that  reacknowledgment  and  admission  to  record,  be  re- 
stored to  its  full  effect  of  notice,  which  would,  by  construc- 
tion, have  followed  from  its  being  recorded  originally 
within  the  time  prescribed  by  law."^ 

1  Meni  v.  Rathbone,  21  Ind.  454.  See,  also,  DeLane  v.  Moore,  14  How. 
253;  Belk  v.  Massey,  II  Rich.  614;  Irvin  v.  Smith,  17  Ohio,  226;  Steele 
V.  Mansell,  6  Rich.  437;  Mallory  v.  Stodder,  6  Ala.  801. 

«  De  Lane  v.  Moore,  14  How.  253,  265.     The  court  states  that  its  views 


S2o  d  REGISTRY    LAWS.  §  625 

are  sustained  by  numerous  decisions,  which  it  cites.  In  Steele  v.  Man- 
sell,  6  Rich.  437,  454,  it  is  said:  "In  the  confidence  which  parties 
repose  in  each  other,  hundreds  of  deeds  are  never  registered,  and  thou- 
sands are  not  registered  within  six  months.  If  a  deed  was  registered 
before  the  right  of  a  creditor  or  purchaser  arose,  of  what  consequence 
can  it  be,  that  the  registration  was  delayed  until  the  six  months  had 
expired?  Being  without  registration  good  as  to  the  party  who  made  it, 
the  deed  might,  as  to  all  other  persons,  be  considered  as  if  it  had  been 
executed  on  the  day  it  was  registered — in  other  words,  as  if  it  had  been 
re-executed  or  acknowledged  on  the  day.  So  if  that  party  should  have 
been  dead  on  the  day  of  registration,  the  deed  good  as  to  his  heirs  might 
be  considered  as  if  it  had  been  then  confirmed  by  them.  Even  if  in- 
fancy, coverture,  or  other  disability  should  prevent  the  supposition  of 
confirmation  on  the  day  of  registration,  why  should  not  the  deed,  bind- 
ing as  to  all  the  world  then  existing,  acquire  by  such  registration  such 
indefeasibility,  as  thence  arises,  against  that  part  of  the  world  which 
afterward  sets  up  opposing  rights  subsequently  acquired?  By  delaying 
beyond  a  prescribed  time,  the  grantee  in  a  deed  has  lost  the  right  to  in- 
sist that  the  tardy  registration  shall  have  relation  to  the  date  of  the 
deed  so  as  to  prevail  against  intervening  claims,  but  why  should  he  lose 
the  benefit  of  registration  from  the  day  it  was  made?  As  regards  notice 
to  be  obtained  by  search  of  a  registry,  the  same  search  which  would 
disclose  a  deed  registered  within  a  prescribed  time,  would  disclose  one 
registered  after  the  expiration  of  the  time;  and  the  same  fraud  or  dis- 
appointment of  past  expectation,  which  would  arise  from  a  first  deed 
being  registered  between  the  search  and  the  execution  of  a  second  one, 
might  ensue,  whether  the  registration  of  the  first  one  was  or  was  not 
■within  a  prescribed  time  from  its  date.  If  it  should  be  decided  that 
regi'^tration  after  the  time  does  not  avail  against  a  subsequent  deed  exe- 
cuted after  this  registration  and  registered  in  time,  a  bona  fide  purchaser, 
whose  conveyance  was  registered  after  the  expiration  of  six  months, 
aay  only  seven  months  from  its  date,  and  whose  grantor  had  afterward 
lived  many  years  solvent  and  honest,  might,  when  these  years  were 
past,  be  deprived  of  his  land,  because  at  last  his  grantor  had  fallen  into 
embarrassment,  and,  under  execution  against  him,  the  land  had  been 
sold.  If  it  should  be  held  that  the  judgment  against  the  grantor  had 
not  preference  over  the  conveyance  tardily  registered,  and  that  notice  to 
a  purchaser  at  sheriff's  sale  under  the  judgment  would,  as  to  him,  stand 
in  the  place  of  a  regular  registration,  then  the  right  of  the  fair  owner  by 
former  purchase  to  hold  his  land  would  depend  upon  his  vigilance  in 
giving  actual  notice  of  his  conveyance  whenever  the  land  was  offered  for 
Bale  by  the  sheriff,  until  it  might  happen  that  a  sale  could  be  made, 
when  notice  could  not  be  brought  home  to  a  purchaser,  who  would 
l>robably  have  got  a  bargain  by  reason  of  the  very  efforts  the  owner  had 
made  to  save  his  rights.  Human  sagacity  could  not  foretell  the  extent 
of  disastrous  influence  which  such  a  decision  would  have  upon  the  land 
titles  of  the  State."     See,  also,  Wood  v.  O wings,  1  Cranch,  239. 


CHAPTER   XXII. 

REGISTRATION  OF  DEEDS. 

§  626.    In  general, 

§  627.     In  England. 

§  628.    Registration  in  the  United  States. 

§  629.    Registration  not  necessary  between  the  parties. 

§  630.    Registration  of  mortgages  in  book  of  deeds. 

§  631.    Mortgagee  considered  a  purchaser. 

§  632.    Pre-existing  debt. 

§  633.    Assignee  of  mortgage  considered  a  purchaser. 

§  634.    Judgment  creditors. 

§  635.  In  some  States  judgment  creditor  considered  within  the  reg- 
istry acts. 

§  636.    Actual  notice  subsequent  to  the  lien  in  these  States. 

§  637.    Purchasers  at  execution  sale. 

§  638.    Purchasers  at  such  sale  with  notice. 

§  639.    Rights  of  judgment  creditor  as  purchaser— tComments. 

§  640.    General  rule— Judgment  creditor  is  not  bona  fide  purchaser. 

§  641.    Contrary  rule  in  Iowa. 

§  641a.  In  other  States. 

§  €>42.    Comments. 

§  643.    Mortgage  for  purchase  money. 

§  643  a.  Third  person  advancing  money. 

§  643  b.  Execution  at  same  time  not  essential. 

§  644.    Administrator's  deed  and  prior  unrecorded  mortgage. 

§  645.    Compliance  with  preliminary  requirements. 

§  646.    Illusti-ations— Attesting  witnesses. 

§  646  a.  Statutes  requiring  payment  of  taxes  prior  to  registration. 

§  646  b.  Such  statutes  held  to  be  constitutional. 

§  616  c.  Comments. 

§  647.    Attachment  at  time  of  acknowledgment. 

§  648.    Incapacity  to  take  acknowledgment 

§  649.    Omission  of  name  of  grantee. 

§  650.    Description  of  land. 

§  651.  Illustrations  of  description  insufficient  to  give  constructive 
notice. 

§  652.  Illustrations  where  purchaser  bound,  though  description  in- 
accurate. 

§  653.    Description  by  impossible  sectional  number. 

§  654.    Distinction  between  description  in  deed  and  in  mortgage. 

§  655.    Comments. 

(826) 


827  EEGISTRATION    OF    DEEDS. 

§  G56.  Instruments  not  entitled  to  registration. 

§  657.  Illustrations. 

§  658.  Want  of  delivery. 

§  659.  Equitable  mortgages. 

§  660.  Assignment  of  mortgage. 

§  661.  In  some  States,  defective  deeds  if  recorded  impart  notice. 

§  662.  In  Kansas. 

§  663.  Registration  in  wrong  county. 

§  664.  Land  in  two  counties. 

§  6ao.  Regis-tration  of  copy  of  deed  in  proper  county. 

§  666.  Certified  copy  of  deed  recorded  in  wrong  county  as  evidence. 

§  667.  Presumption  of  actual  notice  from  examination  of  records. 

§  668.  Comments. 

§  669.  Change  of  boundaries  of  county. 

§  670.  Purcliaser  under  quitclaim   deed— Comments. 

§  671.  View  that  such  purchaser  is  not  entitled  to  ithe  protection  of 
the  registry  acts. 

§  672.  View  that  such  purchaser  is  entitled  to  the  full  protection  of 
the  registry  laws. 

§  673.  Comments. 

§  674.  Intention  in  quitclaim  deed  to  pass  grantor's  interest  only. 

§  075.  Another  illustration. 

§  676.  Reservation  in  quitclaim  deed  as  affecting  prior  void  or  void- 
able deed. 

§  677.  Record  partly  printed. 

§  678.  Interest  of  recording  officer. 

§  679.  Time  at  which  deed  is  held  to  be  recorded. 

§  680.  Mistake  of  copying  deed  in  record — Conflicting  views — Com- 
ments. 

§  681.  View  that  grantee  is  not  affected  by  mistake  in  copying  deed. 

§  682.  Reasonable  precaution. 

§  683.  Of^'ntrarv  view  tliat  purchaser  is  bound  by  what  appears 
upon  record. 

§  684.  Fuller  presentation  of  this  view. 

§  685.  Views  of  Mr.  Pomeroy. 

§  686.  Comments. 

§  6S7.  Effect  of  mistake  in  copying  deed  when  considered  recorded 
as  soon  as  filed. 

§  6.S8.  Effect  of  mistake  where  opposite  view  prevails. 

§  689.  Continued. 

§  690.  Destruction  of  record. 

§  691.  Proof  of  deed  where  record  is  destroyed. 

§  692.  Index  as  part  of  the  record— Comments. 

§  693.  View  that  deed  improperly  indexed  does  not  give  construc- 
tive notice. 

§  694.  Decisions  in  Iowa  on  this  question. 

§  605.  View  that  mistake  in  index  has  no  effect  upon  record. 

§  696.  Comments. 

§  697.  Liability  of  recording  officer  for  error. 


§  626  REGISTRATION    OF   DEEDS.  82cS 

§  G98.  iCori-ection  of  mistake  in  record. 

§  699,  Reformation  of  deed — ^Correcting  record. 

§  700.  Copy  of  seal. 

§  701.  Filing  deed  with  person  in  charge  of  ofBce. 

§  702.  Comments. 

§  703.  Registration  of  deeds  when  State  is  in  rebellion. 

§  704.  Payment  of  fees. 

§  705.  Proof  of  time  at  which  deed  is  recorded. 

§  706.  Withdrawing  deed  filed  for  record. 

§  707.  Consitriictive  notice. 

§  708.  Deposit  subject  to  further  order. 

§  709.  Priority  between  deeds  recorded  on  same  day. 

§  710.  Facts  of  which  the  record  gives  notice. 

§  710a.  Presumption  of  knowledge  of  rights  of  others. 

§  711.  Notice  of  unrecorded  deed  from  notice  of  power  of  sale, 

§  712.  Record  is  not  notice  to  prior  parties. 

§  713.  Record  is  notice  only  to  purchasers  under  the  same  grantor. 

§  714.  Illusitrations. 

§  715.  Record  of  deed  subsequent  to  mortgage  not  notice  to  mort- 
gagee. 

§  71().  Subsequent  purchaser  should  notify  mortgagee. 

§  717.  Actual  notice. 

§  718.  Notice  of  unrecorded  deed. 

§  719.  Unrecorded  deed  and  recorded  purchase  money  mortgage. 

§  720,  Comments. 

§  721.  Subsequently  acquired  title  inuring  to  benefit  of  grantee. 

§  722.  Comments. 

§  723.  How  far  back  purchaser  must  search. 

§  724.  Correct  rule. 

§  026.  In  g-eneral. — The  design  of  the  registration 
acts  is  to  afford  a  convenient  means  of  giving  knowl- 
edge of  the  contents  of  conveyances  affecting  the  title  to 
real  property.  The  title  to  personal  property  is  trans- 
ferred by  a  change  of  possession.  The  title  to  real  estate 
is  conveyed  by  deed.  But  the  owner  of  the  legal  title 
may  not  be  in  the  possession  of  the  premises,  and  the 
record  supplies  notice  to  all  of  his  rights.  Although  a 
purchaser  may  have  no  actual  notice  of  previously  re- 
corded deeds,  yet  he  is  bound  to  take  notice.  The  record 
is  open  to  his  inspection,  and  priority  of  title  is  deter- 
mined, aside  from  the  question  of  notice  to  be  hereafter 
considered,  by  priority  of  record.  The  conveyance  which 
is  first  recorded  takes  precedence,  although  it  may  not 
have  been  the  deed  first  executed.     Between  the  original 


829  EEGISTRATION    OF   DEEDS.  §  627 

parties,  except  in  a  few  States,  the  force  and  validity  of 
deeds  are  not  affected  by  registration.  But  in  contem- 
plation of  law,  every  one  has  notice  of  all  deeds  convey- 
ing from  one  person  to  another  any  interest  in  land,  and 
any  rights  subsequently  acquired  must  be  subordinate  to 
those  which  the  records  disclose.  It  is  presumed  that 
the  records  will  show  every  claim,  title,  or  encumbrance 
upon  every  piece  of  land  within  the  jurisdiction  of  the 
recording  office.  An  opportunity  is  thus  given  to  every 
intending  purchaser  to  ascertain  in  whom  the  legal  title 
lies,  and  to  what  encumbrances  it  is  subject,  and  if  he 
sees  fit  to  rely  upon  the  representations  of  others  with- 
out consulting  the  record,  he  does  so  at  his  own  peril. 
He  cannot  be  considered  an  innocent  purchaser  in  law, 
although  he  may  be  so  in  fact,  for  "  the  registry  laws 
would  be  useless,  unless  subsequent  purchasers  were 
bound  to  take  notice  of  a  deed  previously  recorded."^ 

§  627.  In  Engrland. — In  England  there  is  no  general 
system  of  registration  that  prevails  throughout  the  entire 
kingdom.  In  certain  counties,  systems  of  registration 
have  been  provided  by  different  acts  of  Parliament.  By 
the  statute  of  seventh  of  Anne,  which  provides  for  the 
registration  of  conveyances  in  the  county  of  Middlesex, 
it  is  declared  that  every  deed  shall  be  "adjudged  fraudu- 
lent and  void  against  any  subsequent  purchaser  or  mort- 
gagee, for  valuable  consideration,  unless  such  memorial 
be  registered,  as  by  this  act  is  directed,  before  the  register- 
ing of  the  memorial  of  the  deed  or  conveyance  under 
which  such  subsequent  purchaser  or  mortgagee  shall 
claim."  ^  At  an  early  day  it  was  determined  under  the 
English  registry  acts  that  their  object  was  to  prevent  im- 

»  Buchanan  v.  International  Bank,  78  111.  500,  503;  Hagar  v.  Spect, 
52Cal.  579;  Call  v.  Hastings,  3  Cal.  179;  Mesick  v.  Sunderland,  6  Cal. 
297.  And  see  Chamberlain  v.  Bell,  7  Cal.  292;  68  Am.  Dec.  260;  Wood- 
worth  V.  Guzman,  1  Cal.  203;  Bird  v.  Dennison,  7  Cal.  297. 

*  The  different  registry  acts  in  England  are:  West  Riding  of  York- 
shire, 5  Anne,  c.  18;  East  Riding  of  Yorkshire  and  Kingston  on  Hull, 
6  Anne,  c.  35;  Nortli  Riding  of  Yorkshire,  8  George  II,  c.  6;  Middle- 
sex, 7  Anne,  c.  20;  Irish  Act,  6  Anne,  c.  2. 


§  627  REGISTRATION    OF    DEEDS.  830 

position  upon  subsequent  purchasers  and  mortgagees  by 
setting  up  prior  secret  conveyances  and  fraudulent  encum- 
brances, but  that  if  the  purchaser  had  notice  of  a  prior 
conveyance,  then  that  was  a  secret  conveyance  by  which 
he  was  not  injured,  and  against  which  it  was  not  the  object 
of  the  act  to  protect  him/  But  by  this  was  meant  actual 
notice.  Nothing  is  said  in  the  statutes  about  notice,  and 
the  rule  became  established  that  a  subsequent  purchaser 
who  has  acquired  the  legal  estate  was  not  charged  with 
notice  of  a  prior  conveyance  from  its  registry  alone.^  In 
England,  the  notice  must  be  so  clearly  proved  as  to  ren- 
der the  act  of  taking  and  registering  a  conveyance  in 
prejudice  to  the  known  title  of  another  an  act  of  fraud. 
And  Sir  William  Grant  regretted  that  the  rule  had  been 
even  extended  that  far.  "  It  has  been  much  doubted," 
said  he,  "whether  courts  ought  ever  to  have  suffered  the 
question  of  notice  to  be  agitated  as  agninst  a  party  who 
has  duly  registered  his  conveyance."^     But  the  courts  in 

'  Le  Neve  v.  Le  Neve,  1  Amb.  436.  Speaking  of  this  doctrine  of  no- 
tice, Lord  Eldon  in  this  case  says  that  "the  ground  of  it  is  plainly  this, 
that  the  taking  of  a  legal  estate  after  notice  of  a  prior  right  makes  a  per- 
son mala  fide  purchaser ;  and  not  that  he  is  not  a  purchaser  for  a  valuable 
consideration  in  every  respect.  This  is  a  species  of  fraud  and  dolus 
malus  itself;  for  he  knew  the  first  purchaser  had  the  clear  right  of  the 
estate,  and  after  knowing  that  he  takes  away  the  right  of  another  per- 
son by  getting  the  legal  estate."  See,  also,  Tnnstall  v.  Trappes,  3  Sim. 
301;  Hines  v.  Dodd,  2  Atk.  275;  Cheval  v.  Nichols,  Strange,  664. 

*  Wiseman  v.  Westland,  1  Younge  &  J.  117 ;  Ford  v.  White,  16  Beav. 
120;  Hodgdon  v.  Dean,  2  Sim.  &  St.  221;  Morecock  v.  Dickens,  Amb. 
678;  Underwood  v.  Lord  Courtown,  2  Schoales  &  L.  40;  Bushell  t). 
Bushell,  1  Schoales  &  L.  90.  In  Ford  v.  White,  supra,  the  Master  of  the 
Rolls,  speaking  of  the  effect  of  the  registry  acts  on  the  question  of  notice, 
eaid :  "Nobody  regrets  more  than  I  do  the  effect  of  the  decisions  which 
have  qualified  the  act.  The  legislature  never  intended  that  any  notice 
should  nullify  it,  the  object  being  that  all  encumbrances  should  rank 
according  to  their  priority  on  the  register.  The  court,  however,  has  held 
that  where  a  person  who  has  obtained  a  security  has  notice  of  a  prior 
encumbrance,  it  is  inequitable  to  allow  him  to  obtain  a  priority  over  the 
first  encumbrancer  by  the  mere  priority  of  registration.  The  decisions 
establish  this  and  they  must  not  be  departed  from,  otherwise  many 
titles  would  be  destroyed." 

»  In  Wyatt  v.  Barwell,  19  Ves.  438.  And  see  Rolland  v.  Hart,  Law  R. 
6  App.  678;  Davis  v.  Earl  of  Strathmore,  16  Ves.  419. 


831  EEGISTRATION    OF    DEEDS.  §  628 

that  country  have  held  that  in  certain  cases  actual  notice 
of  a  prior  registered  conve3'ance  may  be  presumed  on  the 
part  of  a  subsequent  purchaser,  when  it  is  proven  that  he 
has  made  an  examination  of  the  proper  records.' 

§  628.  Registration  in  the  United  States. — In  this 
country,  in  all  of  the  States,  there  are  statutes  which  pro- 
vide for  the  registration  of  conveyances  affecting  the  title 
to  real  property,  after  they  have  been  properly  acknowl- 
edged. An  abstract  of  these  was  given  in  the  preceding 
chapter.  These  statutes  have  been  looked  upon  wi^th 
favor  by  tlie  courts.  They  embrace  equitable  estates  and 
interest  in  land,  as  well  as  legal.^     The  record  gives  notice 

*  Lane  v.  Jackson,  20  Beav.  535;  Hodgson  v.  Dean,  2  Sim.  &  St.  221. 

'  Parkist  v.  Alexander,  1  Johns.  Ch.  394;  Alderson  v.  Ames,  6  Md.  52; 
Doyle  r.  Teas,  4  Scam.  202;  Worley  v.  State,  7  Lea  (Tenn.),  382;  Bellas 
V.  McCarty,  10  Watts,  13;  Digman  v.  McCollum,  47  Mo.  372;  Russell's 
Appeal,  3  Harris,  319;  United  States  Ins.  Co.  v.  Shriver,  3  Md.  Ch.  381; 
Siterv.  McClanachan,  2  Gratt.  280;  Wilder  v.  Brooks,  10  Minn.  50;  88 
Am.  Dec.  -^9;  Hunt  v.  Johnson,  19  N.  Y.  279.  In  Bellas  v.  McCarty,  10 
Watts,  13,  25,  Rogers,  J.,  said:  "To  put  equitable  titles  on  a  different 
footing  from  legal  titles  would  be  intolerable  in  Pennsylvania,  where 
we  have  no  means  of  compelling  the  conveyance  of  the  legal  title,  and 
where  one-third  or  perhaps  one-half  of  the  estates  are  in  the  same  pre- 
dicament. And  this  has  been  the  view  taken  of  the  act  in  the  numerous 
cases  which  have  been  cited,  to  notice  which  particularly  would  swell 
this  opinion  to  an  unreasonable  extent.  The  Act  of  18th  of  March,  1775, 
is  not  confined  to  deeds,  but  directs  that  every  recorder  of  deeds,  etc., 
ehall  keep  a  fair  book  in  which  he  shall  immediately  make  an  entry  of 
every  deed  or  writing  brought  into  his  office  to  be  recorded.  The  lan- 
guage of  the  act  is  sufficiently  comprehensive  to  embrace  equitable  as 
well  as  legal  titles,  and  the  record  of  an  equitable  title  is  notice  to  all 
subsequent  purchasers.  It  is  not  doubted  that  a  free  conveyance  duly 
registered  operates  to  give  full  effect  to  the  legal  and  equitable  estate 
conveyed  thereby,  against  a  subsequent  conveyance  of  the  same  legal 
and  equitable  estate.  Where  a  person  has  purchased  an  equitable  title, 
which  he  lias  taken  care  to  put  upon  tlie  record,  in  confoimity  to  the 
directions  of  the  act,  it  would  be  difficult  to  persuade  any  person  that 
there  was  any  justice  in  postponing  his  right  in  favor  of  a  subsequent 
purchaser.  This,  in  truth,  will  not  be  pretended.  And  w'hen  a  pur- 
chane  has  been  made  of  an  equitable  estate,  which  has  undergone  one 
or  more  operations  by  legal  conveyances,  which  have  been  immediately 
recorded,  why  should  a  second  be  postponed  to  a  prior  purchaser,  who 
has  neglected  to  have  his  deed  recorded,  who  has  neither  paid  taxes  nor 
taken  possession  of  the  property,  and  who  luis  done  no  act  or  thing  in 


§  628  REGISTRATION    OF    DEEDS.  832 

to  all  the  world;  and  the  doctrine  of  actual  notice,  not 
derived  from  an  inspection  of  the  record,  as  will  be  more 
fully  treated  o'f  in  a  subsequent  part  of  this  treatise,  also 
generally  prevails  in  this  country.  An  exception  may, 
perhaps,  be  noted  in  the  States  of  Ohio  and  North  Caro- 
lina. In  the  latter  State,  by  the  provisions  of  the  statute, 
deeds  of  trust  and  mortgages  have  no  validity  whatever 
as  against  purchasers  for  value  and  creditors,  until  they 
have  been  registered.  They  become  operative  only  after 
they  have  been  registered.  It  is,  therefore,  under  this 
statute  held  in  that  State,  that  no  notice,  however  full  and 
formal,  will  supply  the  place  of  registration.^  In  Ohio, 
the  priority  of  mortgages  is  fixed  by  the  order  in  which 
they  are  filed  for  record.  The  doctrine  of  notice,  so  far 
as  these  conveyances  are  concerned,  does  not  prevail.^    The 

assertion  of  his  right,  calculated  to  give  notice  of  his  claim?  Justice  and 
sound  policy  would  seem  to  require  that  in  such  cases  nothing  short  of 
clear,  positive,  and  explicit  notice  should  prejudice  the  right  of  a  second 
fair  and  bona  fide  purchaser.  But  it  is  said  that  the  defendants  have 
clothed  themselves  with  the  legal  title,  and  that  where  the  equities  are 
equal,  the  maxim  is,  qui  prior  in  tempore  potior  est  in  jure.  These  ele- 
mentary principles  are  not  denied,  but  they  have  no  application  to  the 
facts  of  the  case.  The  rule  only  applies  between  persons  who  have  been 
equally  innocent  and  equally  diligent.  The  parties  are  not  in  equal 
equity.  One  has  been  vigilant  and  the  other  sleepy,  and  this  leaves 
room  for  the  application  of  the  maxim,  vigilantibus,  non  dormientibus  jura 
subveniunt.  And  when  one  of  two  innocent  persons  must  suffer,  the  loss 
should  be  thrown  on  him  whose  negligence  caused  it." 

1  Robinson  v.  Willoughby,  70  N.  0.  358;  Leggett  v.  Bullock,  Busb. 
283;  Fleming  v.  Burgen,  2  Ired.  Eq.  584. 

2  Bercaw  v.  Cockerill,  20  Ohio  St.  163;  Stansell  v.  Roberts,  13  Ohio, 
148 ;  42  Am.  Dec.  193.  In  the  former  case  it  is  said :  "  By  the  Act  of  March 
16,  1838,  'declaratory  of  the  laws  upon  the  subject  of  mortgages  '  (S.  &  C. 
469)  it  is  'declared  and  enacted  that  mortgage  deeds  do  and  shall  take 
effect  and  have  preference  from  the  time  the  same  are  delivered  to  the  re- 
corder of  the  proper  county,  to  be  by  him  entered  upon  the  record.' 
Under  this  statute  and  that  of  1831  on  the  same  subject,  it  has  been 
uniformly  held  in  a  long  series  of  decisions,  that  a  mortgage  has  no 
effect,  either  in  law  or  equity,  as  against  subsequently  acquired  liens, 
until  its  delivery  to  the  recorder  of  the  proper  county  for  record.  The 
result  is  that  mortgages  have  priority  in  the  order  of  their  respective 
presentation  for  record :  Magee  v.  Beatty,  8  Ohio,  396;  Stansell  t;.  Rob- 
erts, 13  Ohio,  148;  42  Am.  Dec.  193;  Mayham  v.  Coombs,  14  Ohio,  428; 
HoUiday  v.  Franklin  Bank  of  Columbus,  16  Ohio,  633 ;  Woodruff  v.  Robb, 
19  Ohio,  212;  White  v.  Denman,  1  Ohio  St.   110;  Brown  v.  Kirkman,  1 


833  REGISTRATION    OF    DEEDS.  §  629 

notice  given  by  the  registry  is  equivalent  to  that  formerly 
afforded  by  livery  of  seisin.* 

§  629.    Kegristration  not  necessary  between  the  parties. 

It  is  unnecessary  to  observe  that  as  between  the  parties, 
a  deed  is  perfectly  valid  without  registration,  unless 
tliere  is  some  statute  that  imperatively  requires  recording 
as  one  of  the  essential  elements  of  the  execution  of  the 
deed.  The  deed  is  invalid  as  against  certain  persons  un- 
less recorded,  but  "as  between  the  parties  to  a  deed,  it 
has  been  frequently  held  the  title  passes,  notwithstand- 
ing the  deed  may  not  have  been  recorded,  or  lodged  with 
the  clerk  for  that  purpose."^  "None  of  the  registering 
acts  have  been  considered  as  destroying  the  conveyance 
as  between  the  parties  to  it  from  the  omission  to  record 
it.  The  record  was  only  intended  for  the  benefit  of 
purchasers  and  creditors."^  "An  unregistered  deed  is 
in  no  case  void ;  it  is  always  good  as  against  the  grantor 
and    his  heirs."  *     Where    the    genuineness  of  the   deed 

Ohio  St.  116 ;  Fosdick  v.  Barr,  3  Ohio  St.  471 ;  Bloom  v.  Noggle,  4  Ohio  St. 
45;  Sidle  v.  Maxwell,  4  Ohio  St.  236;  Tousley  v.  Tousley,5  Ohio  St.  78. 
And  in  several  of  these  cases  it  was  expressly  held  that  this  rule  as  to 
priority,  is  not  affected  by  the  fact  that  the  subsequent  mortgage  is 
taken  with  actual  notice  to  the  mortgagee  of  a  prior  unrecorded  mort- 
gage." 

*  See  Bryan  v.  Bradley,  16  Conn.  474 ;  Williamson  v.  Calton,  51  Me. 
452;  Matthews  v.  Ward,  10  Gill  &  J.  443;  Caldwell  v.  Fulton,  31  Pa.  St. 
483;  72  Am.  Dec.  760;  Higbee  v.  Rice,  5  Mass.  344;  4  Am.  Dec.  63; 
Blelhen  v.  Dwinel,  34  Me.  135;  Wyman  v.  Brown,  50  Me.  160. 

*  McCIain  v.  Gregg,  2  Marsh.  A.  K.  454;  Raines  v.  Walker,  77  Va.  92; 
Ray  V.  Wilcoxon,  107  N.  C.  514.  Where  a  married  woman  obtains  the 
legal  title  to  land  by  a  deed  from  her  husband,  she  must  file  it  for  record, 
or  it  will  not  prevail  as  against  subsequent  purchasers  without  notice; 
Russell  V.  Nahl,  2  Tex.  Civ.  App.  60. 

»  Jackson  v.  West,  10  Johns.  466. 

*  Chief  Justice  Kent,  in  Jackson  v.  Burgott,  10  Johns.  457 ;  6  Am. 
Dec.  349;  Fitzliugh  v.  Croghan,  2  Marsh.  J.  J.  429;  19  Am.  Dec.  140; 
Guerrant  v.  Anderson,  4  Rand.  208;  Sicard  v.  Davis,  6  Peters,  124; 
Phillips  V.  Green,  3  Marsh.  A.  K.  7;  13  Am.  Dec.  124;  Smith  v.  Stark- 
weather, 5  Day,  207;  Whittemore  v.  Bean,  6  N.  H.  47;  Rolls  v.  Graham, 
6  Moil.  B.  120;  French  v.  Gray,  2  Conn.  92;  Boling  v.  Ewing,  9  Dana, 
76;  Hancock  v.  Beverly,  6  Mon.  B.  531;  Wade  v.  Greenwood,  2  Rob. 
(Va.)  474;  40  Am.  Dec.  759;  Yose  v.  Morton,  4  Cush.  27;  60  Am.  Dec. 

Deevs,  Vol.  11.  —  53 


8  630  REGISTKATION    OF    DEEDS.  834 

was  admitted,  "it  proved,"  said  Mr.  Justice  Marshall  of 
Kentucky,  "a  transfer  of  the  title  from  the  grantor  to  the 
grantee,  and  was  good  evidence  of  this  fact,  not  only  be- 
tween the  immediate  parties,  but  against  all  the  world 
except  purchasers  for  a  valuable  consideration  without  no- 
tice, and  creditors."^  A  deed  from  State  is  permitted  but 
not  required  to  be  recorded,  and  is  valid  against  all 
persons.^  But  if  registration  is  necessary  to  the  va- 
lidity of  the  conveyance,  as  is  sometimes  required  by 
statute  in  the  case  of  proceedings  in  the  sale  of  land 
for  taxes,  then  recording  becomes  a  condition  precedent 
and  no  title  passes,  unless  there  has  been  a  strict  compli- 
ance with  the  statute.* 

§  630.     Registration  of  mortgag-es  in  book  of  deeds. 

If  the  statute  requires  that  separate  books  shall  be  kept 
for  the  registration  of  mortgages,  subsequent  bona  fide 
purchasers  or  mortgagees  are  not  bound  by  the  notice 
given  by  the  registration  of  a  mortgage   recorded  in  a 

750;  Moore  v.  Thomas,  1  Or.  201 ;  Van  Husan  v.  Heames,  96  Mich.  504; 
Snow  V.  Lake,  20  Fia.  656;  51  Am.  Rep.  625;  Stewart  v.  Matthews,  19 
Fla.  752;  Christy  v.  Burch,  25  Fla.  942;  Warnock  v.  Harlow,  96  Oal. 
298;  31  Am.  St.  Rep.  209;  Roane  n  Baker,  120  111.  308;  Leavers.  Spink, 
65  111.  441 ;  Shirk  v.  Thomas,  121  Ind.  147 ;  16  Am.  St.  Rep.  381 ;  Perdue 
V.  Aldridge,  19  Ind.  290;  Betts  v.  Letcher,  1  S.  D.  182;  Kay  v.  Wilcox- 
son,  107  N.  C.  514;  Brem  v.  Lookhart,  93  N.  C.  191;  Stevens  v.  Morse, 
47  N.  H.  532 ;  Fitzgerald  v.  Wynne,  1  D.  C.  App,  107 ;  Davis  v.  Lutkiewiez, 
72  Iowa,  254;  Carleton  v.  Bvington,  18  Iowa,  482.  In  Martin  v.  Quat- 
tlebam,  3  McCord,  205,  it  is  said :  "  On  the  second  question,  it  is  not  nec- 
essary to  the  validity  of  a  deed  that  it  should  be  recorded.  Recording 
only  becomes  necessary  in  particular  when  there  are  double  convey- 
ances. If  the  same  grantor  convey  to  two,  he  whose  deed  is  duly  re- 
corded shall  hold."     See,  also,  Phillips  v.  Hodges,  109  N.  C.  248. 

^  Boling  V.  Ewing,  9  Dana,  76. 

2  Patterson  v.  Langston,  69  Miss.  400. 

»  Clark  V.  Tucker,  6  Vt.  181;  Giddings  v.  Smith,  15  Vt.  344;  Morton 
V.  Edwin,  19  Vt.  81.  Under  a  statute  which  provides  that  no  estate 
above  seven  years  shall  pass  or  take  effect  unless  the  deed  conveying  the 
same  shall  be  executed,  acknowledged,  and  recorded,  leasehold  estates 
for  ninety-nine  years  do  not  pass  title  so  as  to  relieve  the  grantor  from 
the  payment  of  rent  until  the  deeds  conveying  such  estate  have  been 
recorded:  Nichel  v.  Brown,  75  Md.  172. 


835  REGISTRATION    OP    DEEDS.  §  630 

book  of  deeds.^  A  conveyed  land  to  B  as  security  for  a 
loan,  subject  to  a  mortgage  to  C,  the  conveyance  being 
recorded  as  a  deed,  and  a  short  time  afterward,  and  after 
the  payment  of  the  loan,  B  purchased  the  land  from  A, 
and  on  the  latter's  securing  a  satisfaction  from  C  of  his 
mortgage,  B  paid  A  the  whole  price  of  the  land;  C  had 
before  this  time  assigned  his  mortgage  to  another,  D,  but 
the  latter  had  neglected  to  have  his  assignment  recorded; 
C  received  no  consideration  for  executing  the  release  of 
the  mortgage,  but  B  had  no  notice  of  this  fact,  or  of  the 
assignment  to  D.  It  was  held  that  the  lands  in  the  hands 
of  B,  and  purchasers  from  him,  were  discharged  from  the 
mortgage,  and  that  although  the  recording  of  the  deed  to 
B  was  a  nullity  in  the  first  instance,  yet  after  he  pur- 
chased and  paid  for  A's  equity  in  the  land,  the  record  of 
the  deed  became  operative,  and  the  transaction  might  be 
considered  as  equivalent  to  the  delivery  of  a  deed  which 
had  been  recorded  in  expectation  of  a  future  sale.  But  it 
was  also  held  that  if  the  assignment  of  the  mortgage  had 
been  recorded  while  the  deed  remained  as  security  for  A's 
loan,  the  land  in  the  hands  of  B  would  have  been  sub- 
ject to  the  mortgage  thus  assigned.^     But  it  is   held  in 

•  James  v.  Morey,  2  Cowen,  246;  14  Am.  Dec.  475:  6  Johns.  Ch.  417; 
Caldert;.  Chapman,  52  Pa.  .St.  359;  91  Am.  Dec.  163;  White  v.  Moore, 
1  Paige,  551;  Clute  v.  Kobison,  2  Johns.  595;  Warner  v.  Winslow,  1 
Sand.  Ch.  430;  Cordeviolle  v.  Dawson,  26  La.  Ann.  534;  Brown  v.  Dean, 
3  Wend.  208;  Grimstone  v.  Carter,  3  Paige,  421;  24  Am.  Dec.  230;  Dey 
V.  Dunham,  2  Johns.  Ch.  182;  McLanahan  v.  Reeside,  9  Watts,  508;  36 
Am.  Dec.  136;  Fisher  v.  Tunnard,  25  La.  Ann.  179;  Colomer  w.  Morgan, 
13  La.  Ann.  2j2.  The  record  of  a  deed  in  the  mortgage  record  is  not  con- 
structive notice  of  tlie  deed  to  subsequent  purchasers:  Drake?).  Reggel, 
10  Utali,  376;  Aljraham  v.  Mayer,  27  N.  Y.  Supp.  264;  7  Misc.  Rep.  250. 

»  WarntT  v.  Winslow,  1  Sand.  Ch.  430.  In  Dey  v.  Dunham,  2  .Johns. 
Ch.  182,  189,  the  Chancellor  says:  "The  deed  to  tiie  defendant  of  tlie  fifty 
lots  was  on  its  face  an  absolute  deed  in  fee,  with  full  covenants,  and  it 
was  acknowledged  and  recorded  as  a  deed  on  the  day  of  its  date.  It  is 
a(]mitted,  however,  that  the  deed  was  taken  in  the  first  instance  as  a 
security  for  the  payment  of  three  notes,  to  the  amount  of  ten  tiiousand 
dollars,  payable  in  six  months,  and  bearing  date  about  the  same  time 
with  the  deed  in  January,  1810.  Afterward,  on  the  27tu  of  July,  1810, 
and  about  tiie  time  that  the  notes  became  due,  other  notes  were  given 
in  Heu  of  them,  and  an  agreement  under  seal  executed  by  the  defend- 


§  630  REGISTRATION    OF    DEEDS.  836 

Nevada  that  the  statute  of  that  State  concerning  convey- 
ances has  no  provisions  similar  to  those  of  the  statutes  of 
New  York,  under  which,  it  is  held  in  the  latter  State,  that 
the  record  of  a  deed  absolute  upon  its  face,  but  intended 
as  a  mortgage,  gives  no  notice  to  subsequent  purchasers. 
In  Nevada,  subsequent  purchasers  and  encumbrancers 
are  deemed  to  have  constructive  notice  under  the  statute 
of  every  conveyance  affecting  real  estate,  properly  re- 
corded.^ In  Ohio,  the  statute  requiring  mortgages  to  be 
recorded  in  a  set  of  books  denominated  "record  of  mort- 
gages," is  considered  to  be  merely  directory  to  the  recorder. 
It  was  therefore  held  that  a  mortgage  deed  delivered  to 
the  officer  for  registration,  and  recorded  in  a  record-book 
called  the  "record  of  deeds,"  and  indexed  in  both  the  in- 
dex  to  the  volume  and  the  general  index  with  the  letters! 
"mtg."  annexed,  is  operative  as  a  mortgage  against  a] 
subsequent  purchaser  for  value,  although  he  had  no  ac- 
tual notice  of  such  mortgage.^ 

ant,  admitting  that  the  deed  of  the  fifty  lots  was  only  held  as  a  security, 
and  that  if  the  substituted  notes  were  paid,  the  deed  was  to  be  given  up,| 
and  the  lots  reconveyed.    This  agreement,  operating  as  a  defeasance  orj 
explanation  of  the  design  of  the  deed,  was  never  registered,  yet  it  is  to  be 
considered  in  connection  with  the  deed,  and  relates  back  to  its  date,  sc 
as  to  render  the  deed  from  its  commencement  what  it  was  intended  tc 
be  by  the  parties,  a  mere  mortgage,  securing  the  payment  of  the  notes.| 
As  a  mortgage,  the  deed  and  the  subsequent  agreement  ought  to  have 
been  registered,  to  protect  the  land  against  the  title  of  a  subsequentj 
bona  fide  purchaser.     This  is  the  language  of  the  statute  concerning  the 
registry  of  mortgages ;  and  recording  the  deed  as  a  deed  was  of  no  avail 
in  this  case,  for  the  plaintiff  was  not  bound  to  search  the  record  of  deedsM 
in  order  to  be  protected  against  the  operation  of  a  mortgage."     An  in-J^ 
strument  is  recorded  when  filed  for  record  although  it  may  not  be  copied 
into  the  proper  book :  Watkins  v.  Wilhoit,  104  Cal.  395. 

'  Grellett  v.  Heilshorn,  4  Nev.  526.     To  operate  as  constructive  notice,! 
it  has  been  held,  the  instrument  must   be  recorded  in  the  proper  book:! 
Deane  v.  Hutchinson,  40  N.  J.  Eq.  83;  Parsons  v.  Lent,  34  N.  J.  Eq.  67 ;J 
Shaw  V.  Wilshire,  65  Me.  485.     But  where  a  deed  is  considered  recorded 
as  soon  as  filed,  see  Swenson  v.  Bank,  9  Lea,  723;  Oluder  v,  Thomas,  89 
Pa.  St.  343. 

^  Smith  Executor  v.  Smith,  13  Ohio  St.  532.  See,  also,  Salter  v.  Ba- 
ker, 54  Cal.  140;  Huffman?;.  Blum,  64  Tex.  334;  Sleffianv.  Bank,  69 Tex. 
513;  Cook  v.  Parham,  63  Ala.  456;  Fargason  v.  Edrington,  49  Ark.  207 ;| 
Chapman  v.  Miller,  130  Mass.  289;  Brophy  v.  Brophy,  15  Nev.  101.    Ak 


837  REGISTRATION    OF    DEEDS.  §  63J 

§  631.     A  mortg^agee   is  considered   a  purchaser. — A 

mortgagee^  or  a  trustee  in  a  deed  of  trust ^  is  a  purchaser, 
as  the  term  is  used  in  the  recording  acts.  Two  persons 
purchased  for  their  joint  benefit  a  quantity  of  land,  con- 
trilmting  equal  parts  of  the  purchase  money.  They  mu- 
tually agreed  that  conveyances  of  the  property  should  be 
executed  to  one  of  them,  who  subsequently,  with  the 
knowledge  and  consent  of  the  other,  obtained  from  a 
bank  a  number  of  loans.  The  money  thus  obtained  was 
expended  in  improving  the  property.  These  loans  were 
secured  by  trust  deeds  executed  by  the  party  who  had  the 
legal  title,  and  he  afterward  secured  a  sum  of  money 
from  another  bank,  giving  a  mortgage  therefor.  The 
other  partner  in  the  joint  purchase  never  exercised  any 
authority  or  control  over  the  property,  and  his  rights  were 
not  evidenced  by  any  writing.  He  brought  an  action  to 
obtain  a  sale  of  the  property,  and  to  have  the  proceeds 
distributed  among  the  parties  entitled.  It  appeared  that 
his  partner,  whom  he  made  one  of  the  defendants,  paid 
the  taxes  on  the  property,  it  being  assessed  to  him,  and 
from  the  time  of  the  original  conveyance,  until  after  the 
commencement  of  the  action,  always  dealt  with  the  prop- 
erty as  though  lie  were  the  sole  owner.  The  bank  mort- 
gagee had  no  notice  of  any  interest  in  plaintiff,  and  made 
the  loan  to  his  partner  upon  the  faith  of  the  latter's  ap- 

though  the  requirement  of  the  statute,  that  a  deed  intended  as  a  mort- 
ga<;e  shall  be  recorded  as  a  mortgage,  is  not  complied  with,  it  is  valid 
between  the  parties:  James  v.  Morey,  2  Cowen,  246;  14  Am.  Dec.  475. 
The  record  becomes  opc-rative  if,  however,  the  mortgagee  subsequently 
purchases  tlie  equity  of  redemption,  or  obtains  it  by  any  other  means: 
Warner  v.  Winslow,  1  Sand.  Ch.  430.  A  miscellaneous  record-book  used 
by  the  oliicer  for  the  registration  of  exceptional  instruments  and  prop- 
erly indexed,  is  a  proper  record-book,  and  constructive  notice  is  given  to 
third  person°  by  the  record  in  it  of  a  deed  of  standing  timber :  Meet;. 
Benedict,  98  .Mich.  260;  39  Am.  St.  Rep.  543. 

1  Moore  v.  Walker,  3  Lea  (Tenn.),  656;  Whelan  v.  McCreary,  64  Ala. 
319;  Haynsworth  v.  Bischoff,  6  S,  C.  159;  Jordan  v.  McNeil,  25  Kan. 
459;  Patton  v.  Eberhart,  52  Iowa,  67;  Chapman  v.  Miller,  130  Mass. 
289;  13a88v;  Wheeless,  2  Tenn.  Ch.  531;  Weinberg  v.  Rempe,  15  W.  Va. 
829. 

■'  Kesner  v.  Trigg,  98  U.  S.  50;  New  Orleans  Canal  etc.  Co.  v.  Mont- 
gomery, 95  U.  S.  16. 


§  G32  REGISTRATION  OF  dep:ds.  838 

parent  title  by  deed,  under  the  impression  that  the  prop- 
erty WIS  solely  his.  The  court  lield  that  the  claims  of 
the  plaintiff  should  be  postponed  to  those  of  the  mort- 
gagee bank.^ 

§  632.  Pre-existing-  debt.  —  But  a  mortgage  to  secure 
a  pre-existing  debt  is  not  generally  considered  as  a  pur- 
chase for  a  valuable  consideration.  Such  a  mortgagee, 
where  this  is  held  to  be  the  law,  is  not  entitled  to  protec- 
tion against  prior  equities,  although  when  he  took  his 
mortgage   he  had  no    notice   of  them.^     "Although   the 

^  Salter  v.  Baker,  54  Cal.  140.  Said  the  court,  per  Ross,  J:  "There 
can  be  no  doubt  that  the  equities  of  the  bank  are  superior  to  those  of 
the  plaintiff,  who  voluntarily  permitted  the  title  to  the  property  to  be 
placed  in  the  name  of  Baker,  and  for  a  long  series  of  years  allowed  him 
to  appear  as  its  absolute  legal  and  equitable  owner,  and  in  all  respects 
to  deal  with  it  as  his  own.  The  bank,  ignorant  of  any  interest  in  plaintiff, 
and  relying  upon  the  apparent  ownership  of  Baker,  loaned  him  its 
money,  and  should,  in  good  conscience,  be  protected  against  the  now  as- 
serted claim  of  plaintiff:  Rice  v.  Rice,  2  Drew,  73;  Richard  v.  Sears,  6 
Ad.  &  E.  469 ;  McNeil  v.  Tenth  Nat.  Bank,  46  N.  Y.  325 ;  7  Am.  Rep.  341 ; 
Code  Civil  Procedure,  §  3543."  See,  also.  Singer  Mfg.  Co.  v.  Chalmers, 
2  Utah,  542;  Porter  v.  Green,  4  Iowa,  571;  Seevers  t>.  Delashmutt,  11 
Iowa,  174 ',  11  Am.  Dec.  139. 

*  Withers  V.  Little,  56  Cal.  370;  De  Lancey  v.  Stearns,  66  N.  Y.  157; 
Westervelt  v.  Hoff,  2  Sandf.  Ch.  98;  Union  Dime  Savings  Inst.  v.  Dur- 
yea,  67  N.  Y.  84;  Manhattan  Co.  v.  Evertson,  6  Paige,  457;  Dickerson 
t'.  Tillinghast,  4  Paige,  215;  25  Am.  Dec.  528;  Padgett  v.  Lawrence,  10 
Paige,  170;  40  Am.  Dec.  232;  Van  Heuseu  v.  Radcliff,  17  N.  Y.  580;  72 
Am.  Dec.  480;  Cary  v.  White,  7  Lans.  1 ;  s.  c.  52  N.  Y.  138;  Ooddington 
V.  Bay,  20  Johns.  637 ;  11  Am.  Dec.  342 ;  Stalker  v.  McDonald,  6  Hill, 
93;  40  Am.  Dec.  389;  Hinds  v.  Pugh,  48  Miss.  268;  Bartlett  v.  Varner, 
56  Ala.  580 ;  Pancoast  v.  Duval,  28  N.  J.  Eq.  445 ;  Morse  v.  Godfrey,  3 
Story,  364;  Mingus  v.  Oondit,  23  N.  J.  Eq.  313;  Spurlock  v.  Sullivan, 
36  Tex.  511;  Wilson  v.  Knight,  59  Ala.  172;  Gafford  v.  Stearns,  51  Ala. 
434;  Short  v.  Battle,  52  Ala.  456;  Pickett  v.  Barron,  29  Barb.  505;  Thur- 
man  v.  Stoddart,  63  Ala.  336 ;  Coleman  v.  Smith,  55  Ala.  368 ;  Cook  v. 
Parham,  63  Ala.  456;  Alexander?;.  Caldwell,  55  Ala.  517;  Schumpert  v. 
Dillard,  55  Miss.  348;  Perkins  v.  Swank,  43  Miss.  349,360;  Lawrence 
V.  Clark,  36  N.  Y.  128;  Webster  v.  Van  Steenbergh,  46  Barb.  211 ;  Clarke 
V.  Barnes,  72  Iowa,  563 ;  McKamey  v.  Thorpe,  61  Tex.  653 ;  Funk  v.  Paul, 
64  Wis.  35;  64  Am.  Rep.  576;  Sweeney  v.  Bixler.  69  Ala.  539;  Peo- 
ple's Sav.  Bankt).  Bates,  120  U.  S.  556.  See,  also,  Boxheimer  v.  Gunn, 
24  Mich.  372;  Edwards  v.  McKernan,  55  Mich.  520;  Ashton's  Appeal, 
73  Pa.  St.  153;  Jones  v.  Robinson,  77  Ala.  499;  Craft  v.  Russell,  67  Ala. 
9;  Banks  v.  Long,  79  Ala.  319;  Saffold  v.  Wade,  51  Ala.  214;  Summers 


839  EEGISTRATION    OF   DEEDS.  §  632 

plaintiff  was  a  purchaser  without  notice,  he  was  not  a 
purchaser  for  value,  and  his  conscience  was  as  much 
bound  by  the  prior  equity  of  the  defendant  Jacks,  as 
were  the  consciences  of  his  mortgagors.  In  fact  he  occu- 
pied no  better  position  than  his  mortgagors."  ^  But  this 
rule  is  not  universally  accepted,  and  in  some  cases  it  is 
held  that  a  mortgagee  who  in  good  faith  takes  a  mortgage 
to  secure  a  pre-existing  debt,  is  entitled  to  be  regarded  as 
a  purchaser  for  a  valuable  consideration,  and  to  receive 
all  the  protection  that  results  from  this  relation.  But  this 
latter  view  is  not  sustained  by  the  weight  of  authority. 
A  mortgagee  who  has  not  parted  with  value  is  considered 
to  be  in  no  worse  position  than  he  was  before,  and  to  be 
bound  by  the  same  equities  that  bound  his  mortgagor.^ 

V.  Brice,  36  S.  C.  204;  McLeod  v.  First  Nat.  Bank,  42  Miss.  99;  Johnson 
V.  Graves,  27  Ark.  557;  Golson  v.  Fielder,  2  Tex.  Civ.  App.  400;  Over- 
street  V.  Manning,  67  Tex.  657;  Ayres  v.  Duprey,  27  Tex.  593;  86  Am. 
Dec.  657;  Chance  v.  McWhorter,  26  Ga.  315;  Phelps  v.  Fockler,  61  Iowa, 
340;  Koon  v.  Tramel,  71  Iowa,  132.  But  a  mortgage  of  this  kind  is  valid 
between  the  parties:  Turner  v.  McFee,  61  Ala.  468;  Steiner  v.  McCall, 
61  Ala.  413;  Brooks  v.  Owen,  112  Mo.  251;  Smith  v.  Wooman,  19  Ohio 
St.  145;  Paine  v.  Benton,  32  Wis.  491;  Kranert  v.  Simon,  65  111.  344; 
Machette  v.  Wanless,  1  Colo.  225. 

1  Withers  v.  Little,  56  Cal.  370,  373. 

*  Babcock  r.  Jordan,  24  Ind.  14.  Elliott,  C.  J.,  said  in  this  case:  "The 
question  raised  by  the  reply  is  this,  viz:  Is  the  mortgagee  of  a  mortgage 
taken  in  good  faith  to  secure  a  pre-existing  debt  regarded  as  a  purchaser 
for  a  valuable  consideration,  and  protected  as  such?  The  replication 
under  consideration  assumes  the  negative;  but  the  same  question  has 
been  ruled  affirmatively  by  this  court,  in  tlie  case  of  Work  v.  Brayton,  5 
Ind.  396.  Perkins,  J.,  in  delivering  the  opinion  of  the  court  in  that  case, 
Bays:  'The  question  whether  a  mortgagee,  in  a  mortgage  given  for  the 
security  of  a  pre-existing  debt,  is  to  be  regarded  as  a  purchaser  for  a  valu- 
able consideration  has  been  decided  differently  by  different  courts;  and 
there  has  been  a  like  diversity  of  opinion  upon  the  analoious  question, 
whether  the  holder  of  commercial  paper  assigned  as  collateral  security  for 
a  pre-existing  debt  is  to  be  treated  as  a  holder  for  a  valuable  considera- 
tion. The  latter  of  these  questions  this  court  decided  in  the  affirmative 
in  Valette  v.  Mason,  1  Ind.  288;  and  it  would  seem  that  the  principle  of 
that  case,  applied  to  a  mortgage  of  real  estate  to  secure  a  like  indebted- 
ness, would  require  that  to  be  regarded  as  a  purchaser  for  a  valuable 
consideration If  it  is  not  to  be  so  regarded,  the  titles  of  pur- 
chasers and  mort'^agees  for  such  a  consideration  must  be  of  comparatively 
little  value,  as  they  may,  at  any  time,  be  unexpectedly  overrode  by  secret 
invisible  liens  for  unpaid  purchase  money  to  some  former  grantors,  or 


§  633  REGISTRATION    OF    DEEDS.  84.0 

§  633.     Assig'iiee  of  a  mortg-age  is  considered  a  pur- 
chaser.— A.  person  who  purchases  a  mortgage  is  consid- 
ered as  coming  within  the  operation  of  the  registry  acts, 
and  is  entitled  to  full  protection  as  a  bona  fide  purchaser. 
The  fact  that   his  assignor  had   notice  of  prior  encum- 
brances  upon   the  property  described   in  the   mortgage, 
does  not  affect  him  if  he  purchases  in  good  faith  and  for 
a  valuable  consideration,  and  has  his  assignment  recorded 
before  the  registration  of  the  prior  deed  or  encumbrance.^ 
The  assignee  of  a  mortgage  is  entitled  to  the  same  con- 
sideration and  as  ample  protection  under  the  registry  acts 
as  a  person  who  buys  the  equity  of  redemption.^    If  there 
is  a  prior  outstanding  mortgage  at  the  time  the  assign- 
ment is  made,  of  which  the  assignor  had  notice,  and  it  is 
recorded  before  the  assignment,  it  will  take  precedence 
over  the  latter.     This  would  also  be  the  case  if  the  prior 
mortgage  was  recorded  before  the  assignment  was  made, 
but   after   the    registration    of    the    assigned    moi'tgage.* 
While  an  assignee  of  a  mortgage  is  not  chargeable  with 

by  some  other,  till  then  unknown,  alleged  equitable  claims,  which  might, 
in  their  origin,  have  been  without  trouble  made  secure  by  open  recorded 
instruments  that  would  have  been  notice  to  ail  the  world A  pre- 
existing debt  is  held  to  be  a  valuable  consideration  by  Story  in  the  sec- 
ond volume  of  bis  Equity  Jurisprudence,  pp.  657,  658,  and  he  cites  for 
the  doctrine  Metford  v.  Metford,  9  Ves.  lOQ,  and  Bayley  v.  Greenleaf,  7 
Wheat.  46.  In  vol.  2,  pt.  1,  p.  73,  of  White  and  Tudor's  Leading  Cases 
in  Equity,  they  say :  '  Similar  decisions  were  made  in  Eicheson  v.  Riche- 
son,  2  Gratt.  497,  and  in  Dey  v.  Dunham,  2  Johns.  Ch.  182;  though  this 
latter  case  has  not  been  followed  in  New  York,  Kent,  in  the  fourth  vol- 
ume of  his  Commentaries,  p.  154,  approves  the  doctrine,  and  expresses 
the  conviction  that  it  rests  on  grounds  that  will  command  general  as- 
sent.' " 

1  Decker  v.  Boice,  83  N,  Y.  215. 

2  Westbrook  v.  Gleason,  79  N.  Y.  23;  Smyth  v.  Knickerbocker  L. 
Ins.  Co.,  84  N.  Y.  589;  James  v.  Johnson,  6  Johns.  Ch.  417;  Campbell  v. 
Vedder,  1  Abb.  App.  Dec.  295;  Vanderkemp  v.  Shelton,  11  Paige,  28; 
Belden-y.  Meeker,  47  N.  Y.  307;  Purdy  v.  Huntington,  46  Barb.  389;  42 
Is.  Y.  384 ;  1  Am.  Rep.  552;  Smith  v.  Keohane,  6  Bradw.  585 :  Turpin  v. 
Ogle,  4  Bradw.  611;  McClure  v.  Burris,  16  Iowa,  591;  Bowling  v.  Cook, 
39  Iowa,  200 ;  Cornog  v.  Fuller,  30  Iowa,  212;  Bank  v.  Anderson,  14  Iowa, 
544 ;  83  Am.  Dec.  390 ;  Tradesmen's  Building  Assn.  - .  Thompson,  31  N.  J. 
Eq.  536;  Siein  v.  Suliivan,  31  N.  J.  Eq.  409. 

»  Fort  V.  Burch,  5  Denio,  187 ;  De  Lancey  v.  Stearns,  66  N.  Y.  157. 


841  REGISTRATION    OF    DEEDS.  §  634 

notice  possessed  by  his  assignor,  he  is  bound  by  the  con- 
structive notice  of  the  record  and  by  the  notice  supplied 
by  the  possession  and  occupation  of  another  of  the  prem- 
ises embraced  in  the  mortgage.^  In  case  two  assignments 
of  the  same  mortgage  are  made,  the  general  rule  applies, 
and  priority  is  given  to  the  one  who  first  records  his  as- 
signment. In  case  he  paid  only  a  part  of  the  consider- 
ation, he  is  entitled  to  precedence  only  to  such  part.^  But 
generally  the  mortgagee  would  transfer  the  note  to  the 
assignee,  and  its  absence  would  be  a  fact  sufficient  to  put 
the  second  purchaser  upon  inquiry.^ 

§  634.  Judgment  creditors.  —  By  the  rules  of  the 
common  law,  a  judgment  creditor  was  not  regarded  as  a 
purchaser  within  the  recording  laws.'*  Unless  this  con- 
struction has  been  changed  by  statute,  the  same  rule 
would  obtain.^  An  attachment  lien  stands  upon  the  same 
ground,  so  far  as  this  question  is  concerned,  as  a  judg- 
ment lien.®  And  generally  a  judgment  or  attaching  cred- 
itor is  not  entitled   to  protection  against  an  unrecorded 

1  Bush  V.  Lathrop,  22  N.  Y.  535,  549 ;  Jackson  v.  Van  Valkenburgh, 
8  Cowen,  260;  Jackson  v.  Given,  8  Johns.  137 ;  5  Am.  Dee.  328;  Trustees 
of  Union  College  v.  Wheeler,  59  Barb.  585. 

*  Wiley  V.  Williamson,  68  Me.  71;  Pickett  v.  Barron,  29  Barb.  505; 
Potter  V.  Strausky,  48  Wis.  235;  Purdy  v.  Huntington,  46  Barb.  389. 

*  Kellogg  V.  Smith,  26  N.  Y.  18.  See  Brown  v.  Blydenburgh,  7  N.  Y. 
141 ;  57  Am.  Dec.  506.  If  a  part  of  the  mortgaged  property  is  released 
from  the  operation  of  the  mortgage,  the  release,  to  have  full  effect, 
should  be  recorded.  It  is  considered  as  a  conveyance  affecting  title  to 
real  estate.  In  case  such  a  release  is  not  recorded,  a  subsequent  assignee 
of  the  mortgage,  for  a  valuable  consideration  and  without  notice,  is  not 
affected  by  it:  Mutual  Life  Ins.  Co.  u.  Wilcox,  55  How.  Pr.  43.  The 
same  rule  manifestly  applies  in  the  case  of  an  unrecorded  agreement  to 
release  the  mortgaged  premises,  or  a  part  of  them:  St.  John  v.  Spald- 
ing, 1  Thomp.  &  C.  483. 

*  Brace  v.  Marlborough,  2  P.  Wms.  491 ;  Finch  v.  Winchelsea,  1  P. 
Wms.  277. 

*  Rodgers  v.  Gibson,  4  Yeates,  111 ;  Heistner  v.  Fortner,  2  Binn.  40;  4 
Am.  Dec.  417;  Cover  v.  Black,  1  Pa.  St.  493. 

e  Plant  v.  Smytlie,  45  Cal.  161;  Le  Clert  v.  Callahan,  52  Oal.  252; 
Hackett  v.  Callender,  32  Vt.  97;  Hoag  v.  Howard,  55  Oal.  664;  Hart  v. 
Farmers'  &  Mechanics'  Bank,  33  Vt.  252. 


§  634  REGISTRATION    OF    DEEDS.  842 

deed.^  Where  a  judgment  creditor  is  not  considered  a 
purchaser,  an  unrecorded  mortgage  which  is  valid  except 
as  against  bona  fide  purchasers  and  mortgagees  for  value 
and  without  notice,    it  has  been  decided  a    number  of 

1  Bell  V.  Evans,  10  Iowa,  353;  Sappington  v.  Oeschli,  49  Mo.  244? 
Kelly  r.  Mills,  41  Miss.  267;  Boze  v.  Arper,  6  Minn.  220;  Greenleaf  t). 
Edes,  2  Minn.  264;  Evans  v.  McGlasson,  18  Iowa,  150;  Harrallt;.  Gray, 
10  Neb.  186;  Thomas  v.  Kelsey,  30  Barb.  268;  Schmidt  v.  Hoyt,  1  Edw. 
652;  Buchan  v.  Summer,  2  Barb.  Ch.  165;  47  Am.  Dec.  305;  Wilder  v. 
Butterfield,  50  How.  Pr.  385;  Stevens  v.  Watson,  4  Abb.  App.  302; 
Jackson  v.  Dubois,  4  Johns.  216;  Floyd  v.  Harding,  28  Gratt.  401;  Cow- 
ardin  v.  Anderson,  78  Va.  88;  Hoag  v.  Howard,  55  Oal.  564;  Galland  v. 
Jackman,  26  Cal.  79;  85  Am.  Dec.  172;  Wilcoxson  v.  Miller,  49  Cal.  193; 
Pixley  V.  Husgins,  15  Cal.  127;  Hoag  v.  Howard,  55  Cal.  564;  Plant  v. 
Smythe,  45  Cal.  161;  Packard  v.  Johnson,  51  Cal.  545;  Hunter  v.  Wat- 
son, 12  Cal.  363;  73  Am.  Dec.  543;  Mansfield  v.  Gregory,  11  Neb.  297; 
Coartnay  v.  Parker,  21  Neb.  582;  Hubbard  v.  Walker,  19  Neb.  94? 
Dewey  v.  Walton,  31  Neb.  819;  Galway  v.  Malchow,?  Neb.  285;  Hart  v. 
Farmers  and  Mechanics'  Bank,  33  Vt.  252;  Hackett  ;;.  Callender,  32  Vt. 
97;  Fox  V.  Hall,  74  Mo.  315;  41  Am.  Rep.  316;  Stillwell  v.  McDonald,  39 
Mo.  282;  Draper  v.  Bryson,  26  Mo.  108;  69  Am.  Dec.  483;  Black  v.  Long, 
60  Mo.  181;  Potter  v.  McDowell,  43  Mo.  93;  Masterson  v.  Little,  75  Tex. 
682;  Holden  v.  Garrett,  23  Kan.  98;  Plumb  v.  Bay,  18  Kan.  415;  North- 
western Forwarding  Co.  t!.  Mahaffey,  36  Kan.  152;  Foltz  t;.  Wert.  103 
Ind.  404;  Wright  i;.  Jones,  105  Ind.  17;  Shirk  v.  Thomas,  121  Ind.  147? 
16  Am.  St.  Rep.  381 ;  Heberd  v.  Wines,  105  Ind.  237 ;  Boyd  v.  Anderson, 
102  Ind.  217;  Hays  v.  Reyer,  102  Ind.  524;  Orth  v.  Jennings,  8  Blackf. 
420;  Shryock  v.  Waggoner,  28  Pa.  St.  430;  Cover  v.  Black,  1  Pa.  St» 
493;  Knell  v.  Green  St.  Building  Assn.,  34  Md.  67;  Hoy  v.  Allen,  27 
Iowa,  208;  Patterson  v.  Lindner,  14  Iowa,  414;  Phelps  v.  Fockler,  61 
Iowa,  340;  Welton  v.  Tizzard,  15  Iowa,  495 ;  First  Nat.  Bank  v,  Hayzlett, 
40  Iowa,  659;  Norton  t;.  Williams,  9  Iowa,  528;  Duncan  v.  Miiler,  64 
Iowa,  223;  Churchill  v.  Morse,  23  Iowa,  229;  99  Am.  Dec.  422;  Sigworth 
t;.  Meriam,66  Iowa,  477;  Withnell  v.  Courtland  Wago  County,  25  Fed. 
Rep.  372;  Vaughn  v.  Schmalsle,  10  Mont.  186;  McAdow  v.  Black,  4 
Mont.  475;  Kelly  v.  Mills,  41  Miss.  267;  Welles  v.  Baldwin,  28  Minn. 
408;  Dutton  v.  McReynolds,  31  Minn.  66;  Forepaugh  v.  Appold,  17 
B.  Mon.  625;  Righter  t;.  Forrester,  11  Bush,  278;  Morton  v.  Robards,  4 
Dana,  258 ;  Pearson  v.  Davis,  41  Neb.  608 ;  59  N.  W.  Rep.  885.  In 
Sappington  v.  OeschW,  stipra,  the  court  said:  "Ever  since  the  decision 
in  the  case  of  Davis  v.  Ownsby,  14  Mo.  170,  55  Am.  Dec.  105,  it  has  been 
the  settled  law  of  this  State,  that  the  title  of  a  bona  fide  purchaser  or 
mortgagee  under  a  deed  or  mortgage  not  recorded,  is  good  against  cred- 
itors at  large,  and  is  also  good  against  sales  under  judgments,  and  exe- 
cutions, if  the  deed  or  mortgage  is  duly  recorded  before  such  sales.  This 
has  been  the  uniform  ruling  of  this  court  since  the  decision  referred  to : 
See  Valentine  V.  Havener,  20  Mo.  133;  Stilwell  v.  McDonald,  39  Mo.  282; 
Porter?;.  McDowell,  43 Mo.  93;  Reed?;.  Ownby,  44  Mo.  204." 


843  REGISTRATION    OF    DEEDS.  §  634 

times,  has  preference  over  a  judgment  lien.^     Speaking 
of  the  effect  of  a  judgment  lien  upon   the  real  estate  of  a 
debtor,  Chief  Justice  Wright  of  Iowa  observed:  "  It  is  the 
property  of  the  debtor,  which  is  bound  by  the  attachment 
from  the  time  of  service,  and  not  the  property  of  another. 
So,  also,  the  judgment  is  a  lien  upon  the  real  estate  owned 
by  the  defendant  at  the  time  of  its  rendition,  and  not 
li^on  that  owned  by  another.     It  is  true  that  the  phrase 
'real  estate'  includes  lands,  tenements,  and  hereditaments 
and  all  rights  thereto  and  interests  therein,  equitable  as 
well  as  legal,  but  the  judgment  lien  oi)ly  extends  to  the 
interest  owned  by  the  defendant.     If  he  has  no  interest, 
legal  or  equitable,  there  is  nothing  upon  which  the  judg- 
ment   can  rest;  nothing   to  which    the    lien   can  attach. 
Again,  while  principles  of  public  polic}''  have  dictated  the 
equitable  rule,  that  relief  should  not  generally  be  granted 
against  a  bona  fide  purchaser  without  notice,  yet  the  rule 
has  no  place  in  favor  of  a  judgment  creditor,  though  he 
may  have  no  notice  of  the  outstanding  equity.     And  the 
reason  of  this  exception  seems  to  us  very  cogent  and  sat- 
isfactory.    The  ordinary  purchaser  pays  a  new  consider- 
ation.    Not  so  with  the  judgment  creditor.     Such  creditor 
comes  in  under  the  debtor,  and  not,  as  does  the  purchaser, 
through  him.     The  consequence  is  that  the  creditor  is  en- 
titled to  the  same  rights  as  the  debtor  had,  and  no  more. 
By  his  purcluise    he  stands  in  the  place  of    the  debtor. 
And  the  same  rule  applies  to  a  third  person  purchasing 
at  the  sheriff's  sale,  with  notice  of  the  outstanding  title.'"* 
In  a  later  case  in  the  same  State,  Day,  J.,  said:  "It  is  now 

>  Hoy  V.  Allen,  27  Iowa,  208;  Pixley  v.  Huggins,  15  Cal.  127;  Burgh  v. 
Francis,  1  Eq.  Cas.  Abr.  320,  pt.  1 ;  Patterson  v.  Linder,  14  Iowa,  414 ; 
Welton  V.  Tizzard,  15  Iowa,  495;  Jackson  v.  Dubois,  4  Johns.  216; 
Holden  v.  Garrett,  23  Kan.  98;  Eighter  v.  Forrester,  1  Bush,  278;  Orth 
V.  Jennings,  8  Blackf.  420. 

*  In  ^"orton  v.  Williams,  9  Iowa,  528,  531.  See,  also,  Schmidt  v.  Hoyt, 
1  Edw.  Ch.  652;  First  Nat.  Bank  of  Tama  City  v.  llayzlett,  40  Iowa,  65i) ; 
Churchill  v.  Morse,  23  Iowa,  229;  92  Am.  Dec.  422;  Evans  v.  McGlasson, 
18  Iowa,  150;  Morton  v.  Robards,  4  Dana,  258;  Burn  r.  Burn,  3  Ves.  582; 
Hayes  v.  Thole,  18  Iowa,  51 ;  Hoy  v.  Allen,  27  Iowa,  208.  And  see  Mc- 
Kee  V.  Sultenfuss,  61  Tex.  325. 


§  635  REGISTRATION    OF    DEEDS.  844 

the  settled  law  of  this  State  that  an  attachment  or  judg- 
ment lien  does  not  take  precedence  over  a  prior  unre- 
corded deed  or  mortgage  of  which  the  creditor  had  no 
notice."^  Where  a  deed  is  executed  before  the  rendition 
of  a  judgment  against  the  grantor,  but  not  recorded,  it  is 
good  as  against  a  sheriff's  sale  made  on  the  judgment,  if 
it  is  placed  on  record  before  the  sheriff's  deed.^ 

§  635.  In  some  States  jiidgfrnent  creditor  is  considered 
within  the  registry  acts. — In  other  States  of  the  Union,  a 
judgment  lien  has  priority  over  an  unrecorded  deed  or 
mortgage,  of  which  the  judgment  creditor  had  no  notice 
at  the  time  his  lien  attaclied.^     In  Alabama,  the  court, 

^  In  First  Nat.  Bank  etc.  v.  Hayzlett,  40  Iowa,  659. 

'  Wilcoxson  V.  Miller,  49  Cal.  193;  Schoeder  v.  Gurney,  73  N.  Y.  430; 
Apperson  v.  Burgett,  33  Ark.  328.  But  see  Simpkinson  v.  McGee,  4  Lea 
(Tenn.),  432. 

^  Hill  V.  Paul.  8  Miss.  479;  Guiteau  v.  Wisely,  47  111.  433;  Pollard 
V.  Cocke,  19  Ala.  188;  Humphreys  v.  Merrill,  52  Miss.  92;  McCoy  v. 
Rhodes,  11  How.  131;  Vreeland  v.  Olaflin,  24  N.  J.  Eq.  113;  Reiciiert 
V.  McClure,  23  111.  516;  McFadden  v.  Worthington,  45  111.  362;  Massey 
V.  Westcott,  40  111.  160;  Young  v.  Devries,  31  Gratt.  304;  Eidson  v. 
Huff,  29  Gratt.  338;  Grace  v.  Wade,  45  Tex.  523;  Cavanaugh  v.  Peter- 
son, 47  Tex.  198;  Andrews  v.  Matthews,  59  Ga.  466;  Mainwaring  v'. 
Templeman,  51  Tex.  205;  Firebaugh  v.  W^ard,  51  Tex.  409;  Anderson 
V.  Nagle,  12  W.  Va.  98;  Parkersburg  Nat.  Bank  v.  Neal,  28  W.  Va. 
744;  Corpmann  v.  Backastows  84  Pa.  St.  363;  McKeen  v.  Sultenfuss,  61 
Tex.  325;  Ranney  v.  Hogan,  1  Un.  Cas.  253;  Arledge  v.  Hail,  54  Tex. 
398;  Grimes  v.  Hobson,  46  Tex.  416;  Stevenson  v.  Texas  Ry.  Co.,  105 
U.  S.  703;  Baker  v.  Woodward,  12  Or.  3;  Dickey  v.  Henarie,  15  Or.  3:1 ; 
United  States?;.  Griswold,  7  Saw.  311;  Ayres  v.  Duprey,  27  Tex.  593; 
86  Am.  Dec.  657;  Westervelt  v.  Voorhis,  42  N.  J.  Eq.  179;  Sharp  v.  Shea, 
32  N.  J.  Eq.  65;  Hoag  v.  Sayre,  33  N.  J.  Eq.  552;  King  v.  Paulk,  85  Ala. 
186;  4So.  Rep.  825;  Barkers.  Bell,  37  Ala.  354;  Howellr.  Brewer  (N.J. 
Oh.),  5  Atl.  Rep.  137;  Wilcox  «.  Leominster  Nat.  Bank,  43  Minn.  541 ;  19 
Am.  St.  Rep,  259;  45  N.  W.  Rep.  1136;  Lamberton  v.  Merchants'  Bank, 
24  Minn.  281;  Berryhill  v.  Smith,  59  Minn.  285;  61  N.  W.  Rep.  144; 
Mississippi  Valley  Co.  v.  Chicago  St.  L.  &  N.  O.  R.  Co.,  58  Miss.  896;  38 
Am.  St.  Rep.  348;  Moor  v.  Watson,  1  Root,  388;  Guerrant  v.  Anderson, 
4  Rand,  208;  Heermans  v.  Montague  (Va.,  March  30,  1890),  20  S.  E.  Rep. 
899;  Butler  v.  Maury,  10  Humph.  420;  Hitz  v.  National  Metropolitan 
Bank,  11 1  U.  S.  722 ;  Gallagher  v.  Galletley,  128  Mass.  367 ;  Coffin  v.  Ray,  1 
Met.  212;  Paine  v.  Mooreland,  15  Ohio,  435;  45  Am.  Dec.  585;  Holiiday 
V.  Franklin  Bank,  16  Ohio,  533;  Mayham  v.  Coombs,  14  Oh^o,  428;  Hoi- 
liday  v.  Franklin  Bank,  16  Ohio,  533;  Fosdick  v.  Barr,  3  Ohio  St.  471; 


845  REGISTRATION    OF   DEEDS.  §  635 

speaking  of  the  registry  act  in  force  in  that  State,  says: 
"If  the  deed  is  not  recorded  within  six  months,  nor 
until  after  a  judgment  is  rendered  against  the  vendor, 
the  subsequent  registration  of  the  deed  does  not  relate 
back  so  as  to  defeat  the  lien  of  the  judgment,  but  the 
statute  avoids  this  deed  in  favor  of  the  judgment  cred- 
itor who  has  no  notice  of  such  deed,  either  actual  or 
constructive,  at  or  before  the  rendition  of  such  judgment. 
A  notice  acquired  before  the  sale,  but  after  the  lien  at- 
taches, cannot  operate  to  divest  the  lien  or  affect  the  title 
of  a  purchaser  under  the  judgment,"^  In  Illinois,  the 
rule  was  established  at  an  early  day,  that  under  the  stat- 
utes of  that  State,  a  purchaser,  and  a  judgment  creditor 
possessing  a  lien,  stood  upon  the  same  equity,  and  were 
equally  entitled  to  protection  against  prior  unrecorded 
deeds  of  which  they  had  no  notice.  From  this,  the  con- 
clusion follows,  that  a  judgment  lien  attaches  to  whatever 
interest  the  records  disclose  the  judgment  debtor  to  have, 
if  the  judgment  creditor  has  not  actual  notice  from  other 
sources.  His  lien  is  not  restricted  to  the  interest  that  the 
debtor  actually  has,  but  will  take  precedence  over  a  prior 
unrecorded  deed.^ 

Tousley  V.  Tousley,  5  Ohio  St.  78;  White  w.Denman,  16  Ohio,  59;  1  Ohio 
St.  110;  Van  Thorniley  v.  Peters,  26  Ohio  St.  471 ;  Main  v.  Alexander,  9 
Ark.  112;  47  Am.  Dec.  732;  Hawkins  v.  Files,  51  Ark.  417;  Munford  v. 
Mclntyre,  16  111.  App.  316;  McFadden  v.  Worthington,  45  111.  3r)2;  Co- 
lumbus Buggy  Co.  V.  Graves,  108  111.459;  Roane  v.  Baker,  120  111.  308; 
11  N.  E.  Rep.  246. 

1  Pollard  V.  Cocke,  19  Ala.  188, 195.  See  Daniels  v.  Sorrells,  9  Ala. 
436;  Fash  v.  Ravesies,  32  Ala.  451 ;  De  Vendell  v.  Hamilton,  27  Ala.  156. 

*  Massey  v.  Westcott,  40  111.  160.  Said  Mr.  Justice  Lawrence:  "It  is 
insisted  that  Till  and  Knevels,  even  if  they  had  no  notice,  are  not  enti- 
tled to  protection  as  judgment  creditors,  because  they  have  parted  with 
nothing,  and  have  less  equity  than  would  a  subsequent  purcliaser. 
Under  our  statutes  a  purchaser  and  a  judgment  creditor  having  a  lien 
stand  upon  the  same  equity,  and  this  has  been  so  held  ever  since  the 
Act  of  1833,  and  the  case  of  Martin  v.  Dryden,  1  Gilm.  216.  The  same 
remark  applies  to  another  point  made  by  appellant's  counsel,  to  wit, 
that  the  lien  of  a  judgment  attaches  only  to  whatever  interest  in  land 
the  judgment  debtor  may,  in  fact,  have,  and  does  not  take  precedence 
of  a  prior  purchaser  claiming  under  an  unrecorded  deed.  This  has  been 
BO  held  in  some  of  the  States,  but  under  our  Act  of  1833,  it  is  the  settled 


§§   636,  637  REGISTRATION    OF    DEEDS.  846 

§  636.  Actual  notice  subsequent  to  the  lien  in  these 
States. — In  those  States  where  a  judgment  lien  is  con- 
sidered as  within  the  registry  laws,  the  lien  of  the  judg- 
ment creditor  becomes  perfect  at  the  time  it  attaches, 
unless  he  had  notice  of  the  prior  unrecorded  deed.  If  he 
acquires  notice  subsequently,  he  is  not  affected  by  it. 
The  notice  must  be  brought  home  to  him  before  he 
acquired  his  lien.  Simrall,  0.  J.,  said  that  the  statute  of 
Mississippi  may  receive  this  paraphrase:  "A  purchaser 
must  record  his  deed  at  his  peril,  for  if  he  does  not,  it 
shall  be  void  as  to  that  creditor  of  the  vendor  who 
acquires  a  lien  on  the  property  before  he  gets  notice  of 
the  sale.  Within  the  meaning  of  the  words,  as  construed 
by  the  courts,  the  creditor  lias  established  his  right  to 
satisfaction  of  his  debt  out  of  the  property  if  he  has  ob- 
tained a  lien  before  he  receives  notice  of  the  conveyance." 
'•There  is  but  one  class  of  creditors  who  may  avoid  an 
unregistered  deed — those  who  have  obtained  liens  without 
notice;  subsequent  notice  no  more  affects  them  than  it 
\vOuld  a  purchaser  who  got  the  title  before  notice."^ 

§  637.  Purchasers  at  execution  sale. — It  is  settled  by 
the  weight  of  authority  that  a  purchaser  at  an  execution 
sale,  other  than  tlie  judgment  creditor  himself,  is  a  bona 
fide  purchaser  for  a  valuable  consideration,  and  entitled  to 
the  protection  of  the  registry  acts.  He  occupies  the  same 
position,  and  is  entitled  to  the  same  rights  as  a  purchaser 
from  the  grantor  at  a  private  sale.  If  he  had,  at  the  time 
of  the  sale,  no  actual  or  constructive  notice  of  the  claims 
of  third  persons,  he  takes  the  premises,  as  would  any 
other  purchaser,  freed  from  all  equities  of  which  he  had 
no  actual  notice,  and  which  the  proper  records  failed  to 
disclose.^     "And  though  our  statute,"  said  Chief  Justice 

law  of  this  State  that  a  judgment  lien  attaches  to  whatever  interest  in 
real  estate  the  records  disclose  in  the  judgment  deljtor,  in  the  absence 
of  actual  notice  from  other  sources."  See,  also,  McFadden  v.  Worthing- 
ton,  45  111.  362;  Guiteau  v.  Wisely,  47  111.  433. 

1  Loughridge  v.  Bowland,  52  Miss.  546,  558. 

»  Ehle  V.  Brown,  31  Wis.  414;  Morrison  v.  Funk,  23  Pa.  St.  421;  Gar- 


847  REGISTRATION    OF    DEEDS.  §  637 

Savage,  "does  not  save  the  rights  of  judgment  creditors, 
and  the  judgment  alone  is  unavailing  as  an  encumbrance 
against  an  unrecorded  deed,  yet  when  that  judgment  is 
enforced,  and  a  sale  is  made  upon  execution,  and  the 
sheriff's  deed  is  first  recorded,  the  purchaser  becomes  a 
bona  fide  purchaser,  and  in  that  character,  is  entitled  to 
the  property  in  preference  to  the  grantee  in  the  unre- 
corded deed.  Such  is  my  understanding  of  the  law,  and 
such  is  the  current  of  authority  as  I  read  the  cases."  ^ 
In  an  early  case  in  New  Jersey,  Drake,  J.,  said:  "  There 
is  no  well-founded  distinction  between  purchasers  at  sher- 
iff's sale,  and  purchasers  at  private  sale.  The  term 
'purchaser'  is  equally  applicable  to  both,  and  good  policy 
requires  that  the  former  should  be  protected  as  well  as 
the  latter."^  In  a  case  in  Wisconsin,  the  court  intimated 
that  if  mortgaged  premises  were,  at  the  time  of  the  sale, 
occupied  by  a  tenant  of  the  grantee,  this  circumstance 
was  perhaps  sufficient  to  put  the  purchaser  on  inquiry, 
and  to  affect  him  with  notice  of  the  interests  of  the 
grantee  under  the  unrecorded  deed.  But  the  court  held 
that  if  the  purchaser  at  the  foreclosure  sale  took  posses- 
sion of  the  premises,  protection  would  be  given,  under 
the  registry  law,  to  one  who  afterward  bought  the  land 
of  the  execution  purchaser  in  good  faith,  for  value,  before 
the  adverse  deed  was  recorded.'     It  is,  however,  held  in 

wood  V.  Garwood,  9  N.  J.  L.  193;  Den  v.  Richman,  13  N.  J.  L.  43;  Paine 
V.  Moorland,  15  Ohio,  435;  45  Am.  Dec.  585;  Jackson  v.  Chamberlin.  8 
Wend.  625;  Ayres  v.  Duprey,  27  Tex.  605;  86  Am.  Dec.  657;  McNett  v. 
Turner,  16  Wall.  352;  Savery  v.  Browning,  18  Iowa,  246;  Runyan  v. 
McOlellan,  24  Ind.  165;  Davis  v.  Ownsby,  14  Mo.  170;  55  Am.  Dec.  105. 
See,  also,  Evans  v.  McGlasson,  18  Iowa,  150;  Waldo  v.  Russell,  5  Mo. 
387;  Draper  v.  Bryson,  26  Mo.  108;  69  Am.  Dec.  483;  Scribner  v.  Lock- 
wood,  9  Ohio,  184;  Jackson  v.  Post,  15  Wend.  588;  Fords  v.  Vance  17 
Iowa,  94;  Stilwell  v.  McDonald,  39  Mo.  282;  Thomas  v.  Vanlieu,  28  Cat. 
616;  Holmes  v.  Buckner,  67  Tex.  107;  Lee  v.  Bermingham,  30  Kan.  312. 

»  In  Jackson  v.  ChamlK-rlin,  8  Wend.  625,  626. 

*  In  Den  ?;.  Richman,  1  Green,  43,  59. 

»  Ehle  V.  Brown,  31  Wis.  405.  Mr.  Chief  Justice  Dixon,  on  applica- 
tion for  rehearing,  discussed  the  rights  of  purchasers  at  execution  sales 
at  considerable  length,  and  after  an  examination  of  the  case-*,  remarked: 
"There  can  be  no  doubt,    we  think,  of  the  correctness  of  the  ijoaition 


§   638  REGISTRATION    OP    DEEDS.  •    848 

Mississippi  that  judgment  creditors  or  purchasers  at  a 
sheriff's  sale  are  not  purchasers  for  a  valuable  considera- 
tion, but,  in  contemplation  of  a  court  of  equity,  mere  vol- 
unteers/ 

§  638.  Purcliaser  at  such  sale  with  notice. — Obvi- 
ously, a  purchaser  at  an  execution  sale,  where  a  judgment 
is  not  superior  to  an  unrecorded  deed,  can  be  in  no  more 
favorable  position  than  he  would  be  if  he  were  buying  at 
private  sale.  We  have  seen  that  the  law  makes  no  dis- 
tinction between  him  and  the  ordinary  purchaser.  He  is 
entitled  to  the  same  privileges,  and  lie  is  bound  by  the 
same  notice.  If,  therefore,  at  the  time  of  the  sale,  he  has 
actual  notice  of  the  rights  of  others,  or  constructive  no- 
tice, by  the  registration  before  sale  of  the  instruments 
evidencing  or  conferring  those  rights,  or,  if  the  party, 

thus  generally  assumed  by  the  authorities,  that  the  statute  is  to  be  fairly 
and  liberally  construed,  so  as  to  prevent  and  obviate  the  mischiefs  and 
abuses  which  it  was  the  design  of  the  legislature  to  remedy.  The  stat- 
ute was  made  to  prevent  those  who  once  had  title  to  land  from  making 
successive  sales,  and  thereby  defrauding  one  or  more  of  the  purchasers 
which,  at  common  law  and  without  the  statute  inight  be  done;  and,  as 
a  means  of  accomplishing  that  object,  to  protect  innocent  purchasers, 
buying  and  paying  their  money  on  the  credit  of  the  recorded  title,  who 
should  themselves  testify  their  appreciation  of,  and  proper  regard  for,  the 
rights  of  others,  by  complying  with  the  condition  or  requirement  of  the 
statute  in  causing  their  own  deeds  to  be  duly  recorded.  Such  is  the  ob- 
ject, and  such  is  the  justice  and  policy  of  the  law,  for  the  protection  of  in- 
nocent purchasers  who  have  acquired  the  ostensible  title  exhibited  and 
shown  by  the  record.  For  their  protection  and  safety,  prior  unrecorded 
conveyances  and  titles  must  yield,  and  must  be  invalidated.  In  view  of 
this  object  and  of  this  policy,  and  of  the  manifest  justice  of  the  ends  to 
be  attained,  it  would  require  very  urgent  considerations  indeed  to  in- 
duce us  to  put  a  construction  upon  our  registry  law  against  its  letter, 
which  would  enable  a  purchaser  to  keep  his  deed  in  his  own  custody  and 
unrecorded  for  years,  and  suffer  the  title  of  record  of  his  grantor,  and  the 
possession  of  the  land,  to  pass  into  the  hands  of  one  innocent  purchaser 
for  value,  whose  deed  should  be  first  recorded,  or,  as  in  this  case,  into 
and  through  the  hands  of  several  such  purchasers  in  succession,  and  yet, 
after  all  this  had  been  done,  then  to  record  his  deed,  and  assert  and 
maintain  his  paramount  title,  and  uproot  and  destroy  that  of  one  or  all 
of  such  innocent  purchasers." 

^  Kelly  V.  Mills,  41  Miss.  267,  overruling  Kilpatrick  v.  Kilpatrick,  23 
Miss.  124;  55  Am.  Dec.  79. 


849  REGISTRATION    OF   DEEDS.  §§  630,  640 

equitably  entitled  to  the  property,  is  in  possession,  the 
title  the  purchaser  acquires  is  subject  to  such  rights  or 
interests.^  "It  is  the  settled  doctrine  of  this  court  that, 
under  our  present  registry  laws,  the  lien  of  a  judgment, 
before  sale  thereunder,  does  not  take  precedence  of  a  prior 
unrecorded  mortgage;  and  that,  if  (as  in  this  instance) 
the  mortgage  be  recorded  before  the  sheriff's  sale,  the 
purchaser  at  such  sale  will  be  affected  with  notice.'' 

§  639.  Rights  of  jxidg-ment  creditor  as  purchaser — 
Coinraents. — A  purchaser  at  an  execution  sale  is,  as  we 
have  shown,  entitled  to  all  the  protection  of  the  registry 
laws.  If  he  buys  without  notice,  he  is  a  bona  fide  pur- 
chaser, and  the  deed  executed  by  the  sheriff  to  him  will 
take  precedence  over  a  prior  unrecorded  conveyance  of 
which  he  had  no  notice.  But  suppose  the  judgment 
creditor  becomes  himself  a  purchaser  at  the  sheriff's  sale? 
He  may  purchase  the  propert}^,  and  the  amount  of  his 
bid  may  be  in  total  or  partial  satisfaction  of  his  claim. 
Is  he  entitled  to  the  benefit  of  the  registry  laws?  Is  he 
protected  from  all  prior  unrecorded  deeds  and  encum- 
brances of  which  he  had  no  notice  at  the  time  of  the  sale? 
The  question  of  whether  he  occupies  the  position  of  a 
stranger,  and  is  entitled  to  the  same  privileges  and  pro- 
tection, or  is  to  be  regarded  as  a  mere  volunteer,  succeed- 
ing to  the  rights  of  the  judgment  debtor  only,  is  one  of 
interest,  and  one  upon  which  the  decisions  are  not  uni- 
form. 

§  640.  General  rule  that  judgment  creditor  is  not  a 
bona  fide  purchaser, — The  rule  maintained  by  the  weight 

'  Valentine  v.  Havener,  20  Mo.  133 ;  Byers  v.  Engles,  16  Ark.  543 ;  Chap- 
man i;.  Coats,  2G  Iowa,  288;  Hoy  r.  Allen,  27  Iowa,  208;  Hackett  r. 
Callender,  32  Vt.  97;  Priest  v.  Rice,  1  Pick.  164;  11  Am.  Dec.  156;  Ap- 
pcrson  V.  Burfrett,  83  Ark.  328;  Schroedcr  v.  Gurney,  73  N.  Y.  430;  Pot- 
ter V.  McDowell,  43  Mo.  93 ;  Righter  v.  Forrester,  1  Bush,  278 ;  Sappington 
V.  Oeschli,  49  Mo.  244;  Black  v.  Long,  60  Mo.  181;  Fox  v.  Hall,  74  Mo. 
315;  41  Am.  Rep.  316. 

■''  Chapman  v.  Coats,  26  Iowa,  291 ;  Davis  v.  Ownsby,  14  Mo.  170 ;  55 
Am.  Dec.  105. 

Ukeixs,  Vol.  I.  —  &i 


§   640  REGISTRATION    OP    DEEDS.  850 

of  authority,  is  that  a  judgment  creditor  who  takes  the 
property  in  part  or  total  satisfaction  of  his  demand,  is  not 
a  purchaser  entitled  to  protection  against  unrecorded  con- 
veyances. "To  constitute  a  persona  6onaj^c?e  purchaser 
within  the  meaning  of  tlie  statute,  he  must,  upon  the  faith 
of  the  purcliase,  have  advanced  for  it  a  valuable  considera- 
tion. If  he  was  a  creditor  antecedent  to  the  purchase, 
and  paid  for  the  purchase  by  a  credit  on  his  demand,  then 
inasmuch  as  he  has  parted  with  no  consideration  on  the 
faith  of  the  purchase,  he  is  not  a  bona  fide  purchaser 
within  the  meaning  of  the  statute." '  A  bank  became  a 
purchaser  at  an  execution  sale  of  the  property  of  its  judg- 
ment debtor,  and  received  a  certificate  of  purchase  from 
the  sheriff.  Subsequently,  the  bank  by  an  instrument  in 
writing  assigned  the  sheriff's  certificate  to  a  third  party, 
releasing  to  him  all  its  right  and  title  to  the  land,  and 
authorizing  the  sheriff  to  execute  a  conveyance  to  him. 
The  latter  attempted  to  obtain  a  deed  from  the  sheriff, 
but  on  account  of  his  absence  from  home  accepted  a  deed 
from  the  judgment  debtor,  in  place  of  the  sheriff's  deed. 
A  judgment  creditor  of  the  bank  afterward  obtained  a 
conveyance  of  the  premises  from  the  sheriff  on  the  as- 
sumption that  they  were  the  property  of  the  bank.  It  was 
held  that  the  deed  of  the  judgment  debtor  might,  by  agree- 
ment of  the  parties,  be  lawfully  substituted  instead  of  that 
of  the  sheriff,  and  that  by  such  substitution,  the  sheriff's 
sale  was  virtually  subverted,  and  that  officer  was  divested  of 
all  power  to  convey  the  premises  for  the  benefit  of  a  third 
person.  It  followed  as  a  consequence  that  the  conveyance 
from  the  sheriff  to  the  plaintiff  was  void,  and  further  that 

1  Ayres  v.  Duprey,  27  Tex.  593;  86  Am.  Dec.  657;  Wright  v.  Douglas, 
10  Barb.  97;  Dickerson  v.  Tillinghast,  4  Paige,  215;  25  Am.  Dec.  528; 
Orme  V.  Roberts,  33  Tex.  768;  McAdow  v.  Black,  6  Mont.  601;  13  Pac. 
Eep.  377;  Rutherford  v.  Green,  2  Ired.  Eq.  121 ;  Mansfield  v.  Gregory,  8 
Iseb.  432;  O'Rourke  v.  O'Connor,  39  Cal.  442;  Emerson  v.  Sansome,  41 
Cal.  552;  Harral  v.  Gray,  10  JNeb.  186;  Carney  v.  Emmons,  9  Wis.  114; 
Treptow  v.  Buse,  10  Kan.  170;  National  Bank  v.  King,  110  111.  254; 
Shirk  V.  Tlioraas,  121  Ind.  147;  16  Am.  St.  Rep.  381.  See  Blankenship 
V.  Douglas,  26  Tex.  22."');  82  Am.  Dec.  608.  And  see  Hunter  v.  Watson, 
12  Cal.  263 ;  73  Am.  Dec.  543. 


851  REGISTRATION    OF    DEEDS.  §  640 

the  assignee  of  the  bank  had  the  equitable  title  by  the 
assignment  of  the  sheriff's  certificate,  and  the  legal  title 
by  the  deed  of  the  judgment  debtor,  and  both  being  united 
in  him,  they  constituted  a  perfect  title  to  the  premises. 
The  court  also  held  that  no  stranger  could  object  to  the 
sheriff's  conveyance  to  the  bank's  assignee,  and  that  to 
constitute  a  person  a  bona  fide  purciiaser,  he  must  have 
advanced  a  new  consideration  for  the  purchase;  bidding 
off  the  premises  and  applying  the  bid  on  his  judgment 
will  not  constitute  a  bona  fide  purchase,  for  no  considera- 
tion is  advanced  on  the  faith  of  tlie  purchase.^  This  prin- 
ciple is  analogous  to  that  which  prevails  where  there  is 
an  unrecorded  mortgage,  and  the  mortgagor  conveys  the 
premises  to  a  creditor  having  no  notice  of  the  mortgage, 
in  payment  of  a  precedent  debt.  It  is  held  that,  in  such 
a  case,  the  creditor  is  not  a  bona  fide  purchaser  witliin  the 
meaning  of  the  registration  laws,  so  as  to  entitle  his  deed 
to  precedence  over  the  prior  unrecorded  mortgage.^ 

^  Wright  V.  Douglas,  10  Barb.  97.  Speaking  of  the  latter  proposition, 
as  to  whether  a  judgment  creditor  is  a  bona  fide  purchaser,  Gridley,  P.  J., 
at  page  106,  said :  "  It  is  contended  that  inasmuch  as  the  deed  from 
Dennis  to  Dana  was  not  recorded,  the  plaintiff  when  he  purchased  on 
the  judgment  obtained  in  the  attachment  suit  in  1844,  was  a  bona  fide 
purchaser.  The  counsel  for  the  plaintiff  argued  as  though  the  levy  of 
his  attachment  was  in  the  nature  of  a  purchase,  but  that  idea  cannot  be 
supported.  It  was  only  when  he  purchased  his  premises  on  his  execu- 
tion, that  he  can  claim  to  be  a  purchaser  at  all.  But  I  do  not  think  that 
he  can  be  regarded  as  a  bona  fide  purchaser  for  two  reasons :  First,  to 
constitute  a  bona  fide  purchaser,  he  must  liave  advanced  the  consideration 
for  the  purchase.  It  will  not  constitute  a  bona  fide  purchase  that  the 
creditor  bids  off  the  premises  and  applies  the  bid  on  his  judgment.  That 
is  a  precetlent  debt,  and  the  consideration  is  not  advanced  on  the  faith  of 
the  purchase:  1  Rev.  Stats,  746,  §  1;  Dickerson  v.  Tillinghast,  4  Paige, 
215;  25  Am.  Dec.  528;  Coddington  v.  Bay,  20  Johns.  637;  11  Am.  Dec. 
342.  Second,  I  am  constrained  to  say  that  the  plaintiff  had  notice 
enough  to  put  him  on  inquiry,  if  not  to  charge  him  with  a  knowledge  of 
the  defendant's  title.  The  tripartite  deed  was  on  record  when  he  pur- 
chased at  the  execution  sale.  That  was  enough  to  put  him  on  inquiry 
as  to  the  exact  terms  of  the  deed  from  Dennis  to  Dana.  Again,  it  is  fair 
to  conclude  that  the  defendant,  or  SDme  one  under  whom  he  claimed, 
was  in  possession.  The  defemlant  was  in  possession  at  the  commence- 
ment of  this  suit.  When  did  he  acquire  the  possession?  Most  probably 
when  he  took  the  tripartite  deed." 

*  Dickerson  v.  Tillinghast,  4  I^aige,  215;  25  Am.  Dec.  528. 


G41  REGISTRATION    OF    DEEDS. 


852 


§  641.     Contrary  rule  in  Iowa, — In  Iowa,  there  have 
been  several  decisions  on  the  question   as  to  whether  a 
judgment    creditor,    purchasing    at    a    sheriff's    sale,    is 
affected  by  the  existence  of  an  unrecorded  deed  of  which 
he  had  no  notice.     In  one  of  these  cases  the   judgment 
debtor  held    the  legal  title  to    the  lands  in  controversy 
under  an  implied  trust.     After  the  rendition  of  judgment 
against  him,  but  before  the  filing  of  a  transcript  of  the 
judgment  in  the  county  in  which  the  lands  were  situated, 
he  conveyed  them  to  the  cestui  que  trust,  who  neglected 
the  filing  of  his  deed  until  eight  months  after  the  sale  by 
the  sheriff  to  the  judgment  creditor.  The  latter  purchased 
without  any  notice  of  the  deed  to  the  cestui  que  trust,  or 
of  his  rights  in  the  premises.     It  was  held  that  the  judg- 
ment creditor  stood   on   the   same  footing  as  any  other 
bona  fide  purchaser,  and   would    be    afforded    protection 
from  an    unrecorded    deed,   or    outstanding   equities,  of 
which  at   the    time  of   his  purchase  he    had  no  notice.^ 
Although  it  had    previously  been   decided ^  that  a  judg- 
ment   creditor,  by    merging    his   judgment    into  a  title, 
without  notice  of  prior  equitable  claims,  became  a  bona 
fide  purchaser,  and  as  such  entitled  to  the  same  protection 
as  other  subsequent  purchasers,  in  the  absence,  of  course, 
of  equitable  circumstances,  yet,  it  was  said  that  the  course 
of  decision  had  been  vacillating,  and  the  rule  could  not 
be  declared  to  be  established.     "It  is   well  settled   that  a 
third  person,  who  purchases  at  a  sheriff's  sale,"  said  Chief 
Justice    Day,  "without  notice  of  outstanding  equities,  is 
entitled    to  the  same  protection  as  any  other  purchaser 
without  notice  and  for  value.     The  rule,  however,  as  to 
the  judgment  creditor  has  oscillated  somewhat,  and  can 
scarcely  yet  be  regarded  as  settled  in  this  State." ^     Sub- 

1  Gower  v.  Doheney,  33  Iowa,  36. 

«  Halloway  v.  Plainer,  20  Iowa,  121;  89  Am.  Dec.  517. 

3  Gower  v.  Doheney,  33  Iowa,  38.  Continuing,  the  court  said:  "In 
Norton,  Jewett  &  Busby  v.  Williams,  9  Iowa,  529,  which  was  an  action 
of  right,  it  was  said  that  the  rule  that  relief  should  not  generally  be 
granted  against  a  lona  fide  purchaser  without  notice  has  no  place  in 
favor  of  a  judgment  creditor,  though  he  may  have  no  notice  of  an  out- 


853  REGISTRATION    OF    DEEDS.  §  641 

sequently  it  was  held  in  tlie  same  State,  ttiat  if  the  judg- 
ment debtor  neglects  to  give  notice  of  appeal  until  after 
a  sale  of  the  property  under  the  judgment  is  made,  and 
the  judgment  creditor  becomes  the  purchaser,  he  is  en- 
standing  equity.  As  the  purchaser  in  that  case,  however,  was  a  third 
party,  with  both  actual  and  constructive  notice  of  the  outstanding  deed, 
which  was  filed  for  record  after  judgment,  but  before  the  sheriff's  sale, 
this  point  was  not  involved  in  that  case,  and  what  is  said  in  regard  to  it 
is  only  a  dictum.  In  the  case  of  Parker  v.  Pierce,  IG  Iowa,  227,  the 
question  whether  a  purchaser,  at  a  sale  under  execution,  will  take  the 
land  discharged  of  every  claim  or  title,  whether  arising  on  an  unregis- 
tered deed  or  a  mere  equity,  was  expressly  left  undecided.  In  the  case 
of  Vannice  v.  Bergen,  16  Iowa,  556,  85  Am.  Dec.  531,  it  was  maintained 
by  Justice  Dillon,  in  his  dissenting  opinion,  that  a  pnrchas  >r  at  a  sher- 
iff's sale  will  take  the  land  discharged  of  every  claim  or  title,  whether 
arising  under  an  unregistered  deed  or  a  mere  equity,  of  which  he  had 
no  notice  at  the  time  of  his  purchase,  and  which  would  be  invalid 
against  an  ordinary  purchaser;  and  that  'the  rule  applies  equally  when 
the  judgment  creditor  is  the  purchaser,  as  when  the  purchase  is  made 
by  a  stranger.'  In  the  case  of  Evans  v.  McGlasson,  18  Iowa,  152,  the 
court  united  in  holding  that  a  judgment  creditor,  who  becomes  a  pur- 
chaser at  sheriff's  sale,  is  protected  at  law  against  matters  of  which,  at 
the  time  of  the  purchase,  he  had  no  notice,  and  that  this  rule  also  ob- 
tains in  equity,  unless  there  are  equities  of  so  strong  and  persuasive  a 
nature  as  to  prevent  its  application;  and  these,  if  they  are  relied  upon, 
must  be  alleged  and  proved.  As  no  such  equities  have  been  established 
in  the  present  case,  the  doctrine  of  Evans  v.  McGlasson  may  be  regarded 
as  direct  authority  for  sustaining  the  title  of  the  plaintiff.  But  the 
rights  of  the  judgment  creditor  received  more  direct  recognition  in  the 
case  of  Halloway  v.  Platner,  20  Iowa,  121,  89  Am.  Dec.  517,  in  which  it 
was  held  that  when  a  creditor  merges  his  judgment  into  a  title  without 
actual  or  constructive  notice  of  prior  equities  he  becomes  a  purchaser 
within  the  meaning  of  section  2220  of  the  Revision,  and  is  entitled  to 
equal  protection,  in  the  absence  of  equitable  circumstances,  with  any 
other  subsequent  bona  fide  purchaser.  We  attach  no  importance,  under 
the  circumstances  of  the  case,  to  the  delay  in  obtaining  the  sheriff's 
deed.  Had  the  deed  been  procured  and  placed  upon  record  at  the  time 
of  the  expiration  for  redemption.  White  would,  so  far  as  appears,  have 
occupied  precisely  the  same  position  as  now.  It  is  not  shown  that  he 
has  sustained  any  loss,  even  to  the  amount  of  the  filing  fee  of  his  deed, 
from  the  delay  in  procuring  the  sheriff's  deed.  When  Hampton  con- 
veyed to  him,  the  judgment  was  not  a  lien  upon  the  property  conveyed. 
If  the  subsequent  taking  of  the  property  to  satisfy  Hampton's  debt  gave 
White  any  right  of  action  against  him,  it  does  not  appear  but  that  he 
was  just  as  solvent  when  the  sheriff's  deed  was  procured  as  when  the 
year  for  redemption  relapsed."  "It  is  a  wholesome  rule  of  equity  that 
•where  one  of  two  innocent  persons  must  suffer,  the  loss  will  fall  ui^on 
that  party  who  has  been  guilty  of  the  first  negligence." 


§  641  REGISTRATION    OP    DEEDS.  854 

titled  to  the  same  protection  as  any  other  bona  fide  pur- 
chaser,  if  the  judgment  is  afterward  reserved,  and  he,  on 
a  new  trial,  again  recovers  judgment.  This  rule  was 
applied  in  a  case  where,  after  the  sale  on  execution,  and 
while  the  appeal  was  pending,  the  judgment  debtor  sold 
the  property  to  another  person.  The  latter  brought  an 
action  to  restrain  the  judgment  creditor  from  selling  the 
property  on  execution  issued  on  his  second  judgment. 
The  court  held,  however,  that  the  judgment  creditor  had 
a  perfect  title,  and  refused  to  enjoin  the  sale.' 

1  Frazier  v.  Crafts,  40  Iowa,  110.     Day,  J.,  delivered  the  opinion  of 
court,  and  said:  "The  case  presents  this  question:  May  a  judgment 
creditor  who  purcliases  real  estate  atslieriff  s  sale,  before  notice  of  appeal, 
upon  which  the  judgment  under  which  the  sale  occurred  ia  afterward 
reversed,  but  who,  when  the  cause  is  remanded,  recovers  another  judg- 
ment for  the  whole  amount  of  the  first  and  interest,  under  any  circum- 
stances be  considered  a  bona  fide  purcliaser,  and  be  entitled  as  such  to 
the  protection  of  the  provisions  of  section  3541  of  the  Revision?    Or,  in 
other  words,  can  a  judgment  debtor  whose  real  estate  has  been  sold  to 
the  judgment  plaintiff  in  satisfaction  of  the  judgment  before  notice  of 
appeal,  after  the  judgment  under  which  the  sale  occurred  has  been  re- 
versed, and  the  cause  has  been  remanded  for  a  new  trial,  and  after  the 
sheriff's  deed  to  the  judgment  plaintiff  has  been  recorded,  sell  the  real 
estate  to  a  third  party  and  convey  a  valid  title  thereto,  notwithstanding 
judgment  is  again  rendered  on  a  new  trial  for  the  full  amount  of  the 
former  judgment?    These  questions  have  not  hitherto  been  answered  by 
the  adjudications  of  this  court.    The  case  of  Twogood  v.  Franklin,  27 
Iowa,  239,  upon  which  appellant  seems  to  rely,  differs  from  the  present 
one  in  two  material  respects  :  (1)  The  purchase  was  made  after  notice  of 
the  appeal.     (2)  The  party  under  whose  judgment   the  sale  occurred 
failed,  after  the  reversal,  to  recover  another  judgment.     The  language 
upon  which  appellant  relies,  '  that,  to  constitute  a  bona  fide  purchaser  of 
land,  one    must  have   purchased  without    knowledge,    at   least  actual 
knowledge,  of  an  appeal,  and  must  have  parted  with  his  money,  or  altered 
his  situation  on  the  strength  of  such  purchase,'  expresses  merely  the 
views  of  the  writer  of  the  opinion.     The  only  point  determined  in  that 
case  is,  '  that  a  purcl>ase  of  land  at  a  sheriff's  sale  by  the  plaintiff  in  exe- 
cution, or  his  attorney,  with  actual  knowledge  of  a  depending  appeal,  ia 
at  the  peril  of  the  purchaser,  and  the  party  or  his  attorney  thus  buying 
is  not,  within  the  meaning  of  the  statute,  a  bona  fide  purchaser.'     The 
question  now  involved  may   fairly  be  regarded  as  res  nova.    No  good 
reason  is  apparent  why,  under  the  circumstances  of  this  case,  a  judgment 
plaintiff  should  not  be  protected.     If,  upon  the  retrial,  be  had  failed  to 
recover  judgment,  he  would  stand  in  an  attitude  altogether  different. 
Under  such  circumstances  he  would  be  bound  to  make  restitution  to  the 
judgment  defendant.    And  so  long  as  the  title  to  the  land  remained  in 


855  REGISTRATION    OF    DEEDS.  §  641  a 

§  641  a.  In  other  States. — It  is  held  in  Texas,  that 
the  lien  acquired  by  a  creditor  Avithout  notice  by  tlie 
judgment  and  levy  of  execution  is  superior  to  the  title 
founded  on  an  unrecorded  deed,  and  that  a  purchaser 
under  the  execution  with    notice,  is  entitled    to  all  the 

him,  equity  would  require  that  he  restore  the  land  itself,  the  very  thing 
impro[)erly  received  in  satisfaction  of  a  judgment  which  ought  never  to 
have  been  rendered.  And  if  he  could  thus  be  required  to  restore  the 
land  to  the  judgment  defendant,  he  might  be  compelled  to  restore  it  to 
the  vendee  of  such  defendant.  But  in  this  case  the  recovery  of  a  second 
judgment  for  the  full  amount  of  the  first  judgment  and  interest  has 
definitely  settled  the  question  that  Crafts  is  under  no  obligation  to  make 
restitution  to  Clark.  If  Clark  had  brought  an  action  to  recover  the  value 
of  the  land,  it  is  clear  that  Crafts  might  have  offset  the  claim  by  the 
second  judgment.  And  if  Clark  had  sought  to  recover  the  land  itself, 
and  had  even  succeeded,  it  would  have  been  in  his  hands  subject  to 
the  lien  of  such  judgment.  The  true  principle  upon  whicli  bona  fide 
purchasers,  at  a  judicial  sale,  are  protected  in  the  rights  acquired,  we 
apprehend  to  be  that  they  have  a  riglit  to  rely  upon  the  validity  of  the 
judgment,  and  to  invoke  its  protection  for  acts  done  under  it  whilst  it  is 
in  force.  If  this  be  the  principle,  then  there  is  no  reason  why  a  party 
acting  in  every  respect  in  good  faith  and  before  notice  of  appeal,  should 
not  be  protected  to  the  same  extent  as  strangers.  In  Gower  v.  Doheney, 
33  Iowa,  39  (not  cited  by  either  party  to  this  appeal),  are  reviewed  all 
the  previous  decisions  of  this  court  cited  by  the  appellee  upon  the  ques- 
tion of  the  protection  to  be  afforded  to  a  judgment  creditor,  purchasing 
at  a  judicial  sale,  against  outstanding  equities,  and  we  held  that  he  was 
entitled  to  protection  against  such  equities  of  which  he  had  no  notice  at 
the  time  of  his  purchase.  This  decision  is  put  upon  the  ground  that  the 
judgment  plaintiff  stands  upon  the  same  footing  as  any  other  purchaser. 
The  principle  determined  in  that  case  is  decisive  of  this.  The  doctrine 
here  maintained  does  not  enable  a  party  to  retain  property  acquired 
under  an  unjust  judgment.  If  the  judgment  is  ultimately  reversed,  he 
must  restore  the  property  itself,  or  its  value.  Besides  the  judgment, 
defendant  has  it  always  in  his  power,  by  promptly  taking  an  appeal,  to 
j)revent  the  judgment  creditor  from  becoming  a  bona  fide  purchaser: 
See  Woodcock  v.  Bennett,  1  Cowen,  711,  734;  13  Am.  Dec.  568." 

The  general  rule  as  to  the  restitution  of  property  purchased  under  a 
judgment  is  that  if  third  persons  become  the  purchasers,  their  title  is  not 
divested  by  a  subsequent  reversal  of  the  judgment.  This  rule  is  adopted 
to  encourage  bidding  at  judicial  sales,  and  rests  on  consideration  of  pub- 
lic policy :  Frost  v.  McLeod,  19  La.  Ann.  69 ;  Farmer  v.  Rogers,  10  Cal. 
335 ;  Reynolds  v.  Harris,  14  Cal.  667 ;  76  Am.  Dec.  459 ;  Gott  v.  Powell, 
41  Mo.  416;  Woodcocks.  Bennett,  1  Cowen.  711;  13  Am.  Dec.  568;  Flas- 
ter  V.  Fleming,  56  111.  457;  Hubbell  v.  Broadwell's  Heirs,  8  Ohio,  120; 
Coster  V.  Peters,  7  Robt.  386;  Jesup  v.  City  Bank,  15  Wis.  604;  82  Am. 
Dec.  703;  Porter  v.  Robinson,  3  Marsh.  A.  K.  253;  13  Am.   Dec.  153; 


§   G42  REGISTRATION    OF    DEEDS.  856 

rights  of  the  creditor.  It  was  said  by  the  court:  "Now, 
if  the  unrecorded  instrument  cannot  take  effect,  but  is 
void  as  to  creditors.,  it  is  absurd  to  say  that  the  creditor's 
lien  does  not  bind  the  hand  to  which  it  applies,  or  that  it 
cannot  be  enforced  by  the  sale  of  the  land  so  bound  by 
it  for  the  payment  of  the  debt,  just  as  if  no  such  instru- 
ment existed.  And  it  would  be  equally  as  absurd  to  say 
that  the  right  acquired  by  the  creditor  by  his  lien,  not 
merely  to  purchase  himself,  but  to  have  the  lien  sold  in 
open  market,  when  once  secured  can  be  taken  away  by 
the  subsequent  record  of  such  instrument,  or  that  the 
party  holding  such  lien  can,  by  subsequent  notice,  be 
precluded  from  the  full  benefit  of  his  lien  for  the  satis- 
faction and  discharge  of  his  demand,  except  by  becoming 
himself  the  purchaser."^ 

§  642.  Comments. — In  those  States  where  the  judg- 
ment lien  is  entitled  to  precedence  over  an  unrecorded 
deed  or  encumbrance,  this  question  cannot  arise.  If  the 
lien  of  the  judgment  is  superior,  so  must  be  the  title  ac- 

Hauschild  r.  Stafford,  27  Iowa,  301;  Dorsey  v.  Thompson,  37  Md.  25; 
Wood  ?;.  Jackson,  8  Wend.  9;  22  Am.  Dec.  603;  Lovett  v.  German  Re- 
formed Church,  12 Barb.  67;  Leslies.  Ricliardson,  60  Ala.  563;  Marks  v. 
Cowles,  61  Ala.  299;  Pittield  v.  Gazzam,  2  Ala.  325;  Fergus  v.  Wood- 
worth,  44  111.374;  Stinson  v.  Ross,  51  Me.  556;  81  Am.  Dec.  591;  Tay- 
lor V.  Laner,  26  La.  Ann.  307;  Stroud  v.  Casey,  25  Tex.  740;  78  Am.  Dec. 
556;  Irwin  v.  Jeffers,  3  Ohio  St.  389.  It  is  said  that  the  same  rule  ap- 
plies to  the  assignee  of  the  judgment  creditor  who  has  become  a  pus- 
chaser:  Horner  v.  Zimmerman,  45  111.  14;  Vogler  v.  Montgomery,  54 
Mo.  577;  Taylor  v.  Boyd,  3  Ohio,  337;  17  Am.  Dec.  603;  Guiteau  v. 
Wisely,  47  111.  433;  Wadhams  v.  Gay,  73  111.  422;  McAnsland  v.  Pundt, 
1  Neb.  211,  But  this  is  denied  in  Alabama:  Marks  v.  Cowles,  61  Ala. 
299.  But  the  rule  that  the  reversal  of  a  judgment  does  not  affect  a 
third  person  who  becomes  a  purchaser,  has  no  application  when  the 
purchaser  is  the  judgment  creditor  himself:  Reynolds  v.  Harris,  14  Cal. 
667 ;  76  Am.  Dec.  459. 

^  Grace  v.  Wade,  45  Tex.  522.  The  earlier  case  of  Price  v.  Cole,  35 
Tex.  461,  was  overruled.  See,  also,  Catlin  v.  Bennatt,  47  Tex.  165; 
Grimes  v.  Hobson,  46  Tex.  416;  Mainwarringi;.  Templeman,  51  Tex.  205; 
Wallace  v.  Campbell,  54  Tex.  87  ;  Stevenson  v.  Texas  Ry.  Co.,  105  U.  S. 
703.  See  in  other  States,  Sharp  v.  Shea,  32  N.  J.  Eq.  65 ;  Condit  v.  Wil- 
son, 36  N.  J.  Eq.  370 ;  Fash  v.  Ravesies,  32  Ala.  451 ;  Smith  v.  Jordan, 
25  Ga.  687 ;  Wood  v.  Chapin,  13  N.  Y.  509 ;  67  Am.  Dec.  62. 


857  REGISTRATION  OF  DEEDS.  §  643 

quired  by  virtue  of  a  sale  under  the  judgment.  But  in  the 
majority  of  tlie  States,  where  tlie  doctrine  prevails  that  a 
judgment  affects  only  the  actual  interest  of  the  judgment 
debtor,  and  does  not  take  priority  over  unrecorded  con- 
veyances, the  judgment  creditor  is  regarded  as  a  mere 
volunteer.  If  he  takes  nothing  by  his  lien,  how  can  he 
acquire  a  better  right  by  attempting  to  convert  that 
lien  into  a  title  ?  The  reason  that  an  unrecorded  deed  is 
given  the  preference  over  the  judgment  lien,  is  that  the 
judgment  creditor  is  in  no  more  unfavorable  position 
than  he  was  before  he  obtained  his  lien.  This  reason 
must  apply  with  equal  force  when  he  takes  a  sheriff's 
deed,  without  advancing  a  new  consideration.  If, 
however,  he  bids  for  the  property  more  than  the 
amount  of  his  judgment,  and  pays  the  excess  to  the 
judgment  debtor,  there  can  be  no  doubt,  as  we  un- 
derstand the  law,  that  he  would  occupy  the  position 
of  any  other  purchaser.  In  such  a  case,  he  does  advance 
a  new  consideration  on  the  faith  of  the  purchase  and 
should  accordingly  be  regarded  as  a  bona  fide  purchaser. 
Nor  would  it,  in  our  opinion,  make  any  difference  how 
small  the  amount  was  over  the  judgment.  If  the  judg- 
ment debtor  received  any  new  consideration  whatever 
from  the  judgment  creditor,  this  would  make  the  latter 
a  purchaser  for  value,  and  entitle  him  to  all  the  rights 
and  benefits  due  to  a  person  holding  that  relation. 

§  643.  Mortgage  for  purchase  money. — If  a  mortgage 
is  executed  at  the  time  the  land  is  purchased,  to  secure 
the  payment  of  the  consideration  for  which  the  land  was 
sold,  such  mortgage  is  entitled  to  preference  over  judg- 
ments and  other  debts  of  the  mortgagor,  so  far  as  the  land 
thus  purchased  and  mortgaged   is    concerned.^     But    in 

'  Clark  V.  Mnnroe,  14  Mass.  351;  Biintinpj  v.  Jones,  78  N.  0.  242; 
Phelpa  V.  Fockler,  61  Iowa,  340;  Laidley  v.  Aiken,  80  Iowa,  112;  20  Am. 
St.  Rep.  408;  Curtia  v.  Root,  20  111.  53;  Roane  v.  Baker,  120  111.  308; 
Gowardin  v.  Anderson,  78  Va.  88;  Clark  v.  Butler,  32  N.  J.  Eq.  644; 
Stewart  v.  Smith,  36  Minn.  82;  1  Am.  8t.  Rep.  651;  BoUes  v.  Carli,  12 
Minn.  113;  Grant  v.  Dodge,  43  Me.  489;  Guy  v.  Carriere,  6  Cal.  511. 


§  643  REGISTRATION  OF  DEEDS.  858 

order  that  a  raortgage  may  be  entitled  to  this  character 
of  a  purchase  money  mortgage  it  must  be  executed  at  the 
same  time  as  the  deed  from  the  grantor.  The  preference 
is  lost  by  allowing  an  interval  of  time  to  elapse  between 
the  two  transactions,  during  which  the  interest  of  the  pur- 
chaser is  subject  to  be  levied  upon.^  A  mortgage  of  this 
character  is  good  against  the  wife  of  the  mortgagor,  even 
if  she  is  not  a  party  to  it.^  "  Courts,  indeed,  have  gone 
so  far  as  to  hold  that  where  a  purchaser  takes  a  deed  of 
land,  and  at  the  same  time  executes  a  mortgage  to  a  third 
person  to  secure  money  used  in  payment  for  the  land, 
the  mortgage  and  deed  may  be  regarded  as  constituting 
one  transaction,  and  the  mortgage  will  be  paramount  to 
the  dower  right  of  the  wife  of  the  purchaser,  although 
she  does  not  sign  the  mortgage."^  As  the  instruments 
derive  their  effect  from  delivery,  it  is  sufficient  if  they 
are  delivered  at  the  same  time,  and  the  fact  that  they  were 
executed  at  different  times  is  immaterial.*  A  mortgagee 
for  purchase  money  is  preferred  to  a  homestead  exemp- 
tion.^    If  the  conveyance  reserves  an  annual  rent,  and  con- 

1  Heuisler  v.  Nickum,  38  Md.  270;  Ahern  v.  White,  39  Md.  409;  Fos- 
ter's Appeal,  3  Pa.  St.  79. 

*  Thomas  v.  Hanson,  44  Iowa,  651 ;  "Walters  r.  Walters,  73  Ind.  425 ; 
Birnie  v.  Main,  29  Ark.  591;  Hinds  v.  Ballou,  44  N.  H.  619;  Stow  v.  Tifft, 
15  Johns.  458;  8  Am.  Dec.  266;  Thompson  v,  Lyman,  28  Wis.  266;  Mills 
V.  "'^^an  Voorhies,  20  N.  Y.  412. 

*  Thomas  v.  Hanson,  44  Iowa,  651,  653,  per  Adams,  J.,  citing  Clark  v. 
Munroe,  14  Mass.  351 ;  Hazelton  v.  Lesure,  9  Allen,  24;  King  v.  Stetson, 
11  Allen,  407.  See,  also,  Eslava  v.  Lepetre,  21  Ala.  604;  56  Am.  Dec. 
266;  Bell  v.  The  Mayor  of  New  York,  10  Paige,  49;  McGowan  v.  Smith, 
44  Barb.  232;  Biliingsley  v.  Neblett,  56  Miss.  537;  Jones  v.  Parker,  51 
Wis.  218;  Kaiser?'.  Lembeck,  55  Iowa,  244;  7  N.  W.  Rep.  519;  Kettle 
V.  Van  Dyck,  1  Sand.  Oh.  76 ;  Young  v.  Tarbell,  37  Me.  509. 

*  Bannmg  v.  Edes,  6  Minn.  402;  Mayburry  v.  Brien,  15  Peters,  21; 
Cake's  Appeal,  23  Pa.  St.  186;  62  Am.  Dec.  328;  Summers  v.  Darne,  31 
Gratt.  791;  Stewart  v.  Smith,  36  Minn.  82. 

*  Kimble  V.  Esworthy,  6  Bradw.  (III.)  517;  Middlebrooks  v.  Warren, 
59  Ga.  230;  Guinn  v.  Spurgin,  1  Lea  (Tenn.),  228.  See  Carr  v.  Cald- 
■well,  lOCal.  380;  70  Am.  Dec.  740;  Allen  v.  Hawley,  66  111.  164;  New 
England  Jewelry  Co.  v.  Merriam,  2  Allen,  390;  Lane  v.  Collier,  46  Ga. 
580;  Amphlett  v.  Hibbard,  29  Mieh.  298;  Magee  v.  Magee,  51  111.  500; 
99   Am.  Dec.  571;  Nichols  r.  Overacker,  16  Kan.  54.     And  see,  also. 


859  REGISTRATION    OF    DEEDS.  §  643  a 

tains  a  conrlition  that  the  grantor  may  enter  and  take 
possession  for  failure  to  pay  the  rent  reserved,  the  trans- 
action partakes  so  much  of  the  character  of  a  mortgage 
for  the  purchase  money  that  the  grantee  has  no  po\ver  to 
create  an  encumbrance  superior  to  the  right  of  the 
grantor.^  But  a  mortgage  for  purcliase  money  to  have 
this  preference  must  be  taken  immediately.  It  is  subor- 
dinate to  a  prior  mortgage  taken  for  value  and  without 
notice.'^  A  mortgage  of  this  character  has  precedence 
over  a  lien  for  labor  and  materials  supplied  to  the  pur- 
chaser,^ While  such  a  mortgage  bars  a  wife  of  her  right  of 
dower/  yet  she  is  not  barred  by  the  fact  that  the  mort- 
gage recites  it  to  be  a  mortgage  for  the  purchase  money, 
when,  by  reason  of  the  lapse  of  time  between  the  deed 
and  the  mortgage,  it  is  not.^  But  where  the  mortgage  for 
the  purchase  money  is  not  recorded,  a  deed  from  the 
grantor  to  a  third  party  will  not  prevail  against  a  subse- 
quent recorded  deed  from  the  grantee  to  a  party  having 
no  notice  of  the  mortgage  or  the  grantor's  second  deed.^ 

§  643  a.  Third  person  advancing'  money. — A  mort- 
gage made  to  a  third   person  who  advances  the  money 

Greenov.  Barnard,  18  Kan.  518;  Pratt  v.  Topeka  Bank,  12  Kan.  570; 
Hopper  V.  Parkinson,  5  Nev.  233;  Hand  v.  Savaanah  etc.  E.  K.,  12  S.  C. 
314. 

1  Stephenson  v.  Haines,  16  Ohio  St.  478. 

*  Houston  V.  Houston,  67  Ind.  276.  Priority  is  given  to  a  mortfjage 
for  purcliase  money  recorded  with  the  deed  of  purchase  over  a  mort- 
gage made  by  the  purchaser,  before  the  completion  of  the  purchase  to 
secure  a  loan  to  be  used  for  making  the  cash  payment,  even  if  tliis  prior 
mortgage  was  recorded  before  the  purchase  money  mortgage  to  the 
grantor  was  recorded:  Turk  v.  Funk,  68  Mo.  18;  30  Am.  Rep.  771;  City 
Nat.  Bank's  Appeal,  91  Pa.  St.  163. 

*  Guy  V.  Carriere,  5  Cal.  511;  Strong  v.  Van  Deursen,  23  N.  J.  Eq. 
869;  Lamb  w.  Cannon,  38  N.  J.  L.  362;  Macintosh  v.  Thurston,  25  N.  J. 
Eq.  369;  Virgin  v.  Brubaker,  4  Nev.  31.  See,  also,  Rees  v.  Ludington,  13 
Wis.  276;  80  Am.  Dec,  741.     But  see  Tanner  v.  Bell,  61  Ga.  584. 

*  Jones  V.  I'arker,  51  Wis.  218;  George  v.  Cooper,  15  W.  Va.  666. 

'  Tibbetts  v.  Langley  Mfg.  Co.,  12  S.  O.  465.  A  deed  of  trust  is  con- 
sidered to  be  a  mortgage:  Summers  v.  Darne,  31  Gratt.  791;  Curtis  v. 
Root,  20  111.  53;  Austin  v.  Undcrwool,  37  111.  438;  87  Am.  Dec.  254. 

'^  Thompson  v.  Westbrook,  56  Tex.  265. 


§  643  a  EEGISTRATION    OF    DEEDS.  860 

is  treated  as  a  purchase  money  mortgage,  and  the  holder 
of  it  is  entitled  to  the  same  rights  as  if  the  mortgage  had 
been  executed  to  tlie  grantor/  Where  a  son  negotiates 
with  his  father  for  the  purchase  of  the  latter's  land,  and 
with  a  third  person  for  a  loan  of  money  to  enable  him 
to  make  the  purchase,  and  the  father  executes  a  deed  to 
the  son  receiving  the  money  from  the  stranger  to  whom 
the  son  and  wife  execute  a  mortgage  to  secure  repay- 
ment of  the  purchase  money,  all  the  acts  being  contem- 
poraneous and  parts  of  one  transaction,  the  mortgage 
must  be  considered  in  equity  as  a  purchase  money  mort- 
gage, and,  even  if  it  had  not  been  signed  by  the  son's  wife, 
will  not  be  subject  to  a  homestead  right  or  right  of  dower.^ 
When  the  money  is  thus  advanced  by  a  third  person,  who 
takes  a  mortgage  to  secure  his  advances  as  a  part  of  the 
same  transaction,  the  lien  of  the  mortgage  is  superior  to 
that  of  a  prior  judgment  obtained  against  the  purchaser.' 
A  married  man  bought  a  lot  of  land,  and  to  secure  the 
payment  of  the  purchase  money  executed  a  mortgage  to 
the  vendor,  who  subsequently  obtained  a  decree  of  fore- 
closure. Immediately  before  the  sale  was  to  occur  the 
vendee  borrowed  of  a  third  person  sufficient  money  to 
discharge  the  mortgage  and  decree,  and  agreed  to  give 
him  a  mortgage  on  the  lot  to  secure  the  money  advanced. 
The  latter  paid  off  the  decree,  and  the  vendor's  mortgage 
was  satisfied;  and  shortly  afterward  the  vendee  complied 
with  this  agreement  by  executing  to  him  a  mortgage,  but 

^  Pearl  v.  Hervey,  70  Mo,  160;  Kaiser  v.  Lembeck,  55  Iowa,  244; 
Laidley  v.  Aikin,  80  Iowa,  112;  20  Am.  St.  Rep.  408;  Mize  v.  Barnes,  78 
Ky.  506 ;  Dillon  v.  Byrne,  5  Oal.  455 ;  Lassen  v.  Vance,  8  Oal.  271 ;  68  Am. 
Dec.  322;  Carr  v.  Caldwell,  10  Cal.  380;  70  Am.  Dec.  740;  Curtis  v.  Root, 
20  111.  53;  Jones  v.  Parker,  51  Wis.  218;  Carey  v.  Boyle,  53  Wis.  574; 
Jackson  ?;.  Austin,  15  Johns.  477;  Dwenger  v.  Branigan,  95  Ind.  221; 
Adams  v.  Hill,  29  N.  H.  202 ;  Moring  v.  Dickenson,  85  N.  C.  466.  See, 
also,  Butler  v.  Thorn  burg,  131  Ind.  277;  31  Am.  St.  Rep.  433;  Stewart 
V.  Smith,  36  Minn.  82;  1  Am.  St.  Rep.  651;  Bradley  v.  Bryan,  43  N.  J. 
Eq.  396;  Cowardin  v.  Anderson,  78  Va.  88;  Rogers  t>.  Tucker,  94  Mo.  346. 

*  Jones  V.  Parker,  51  Wis.  218. 

*  Laidley  v.  Aiken,  80  Iowa,  112;  20  Am.  St.  Rep.  408;  Jackson  v. 
Austin,  15  Johns.  477;  Stewart  v.  Smith,  36  Minn.  82;  1  Am.  St.  Rep. 
651. 


861  REGISTRATION    OF    DEEDS.  §  643  b 

the  vendee's  wife  did  not  join  in  tlie  mortgage,  although, 
at  the  time  such  third  person  advanced  the  money,  the 
premises  were  occupied  by  the  vendee  and  his  wife  as  a 
homestead.  Not  long  afterward  the  vendee  died,  and  the 
wife  claimed  the  property  as  a  homestead,  but  the  court 
held  the  mortgage  of  the  person  advancing  the  money 
took  the  place  of  the  vendor's  mortgage,  and  consequently 
became  a  valid  lien  on  the  premises  to  the  extent  that  the 
money  was  applied  to  the  satisfaction  of  the  original 
vendor's  mortgage.^ 

§  643b.      Execution  at  same  time  not  essential.— It  is 

not  necessary  that  the  deed  and  mortgage  should  be  exe- 
cuted at  the  same  time,  or  even  on  the  same  day,  that 
they  may  be  considered  as  contemj^oraneous,  if  they  form 
parts  of  one  continuous  transaction  and  are  so  intended. 
For  the  purpose  of  effectuating  the  intent  of  the  parties 
the  two  instruments  will  be  treated  as  contemporaneous.'^ 
Thus,  where  a  mortgage  was  made  three  days  later  than 
the  deed,  it  was  considered,  for  the  purpose  of  enabling 
the  person  advancing  the  money  to  occup}^  the  position 
of  a  purchase  money  mortgagor,  to  have  been  contem- 
poraneous with  the  deed.^  A  purchaser  executed  a  note 
in  part  payment  of  the  purchase  price,  which  was  after- 
ward transferred  to  another,  who  shortly  after  the  transfer, 
loaned  the  purchaser  an  additional  sum,  took  a  note  and 
a  new  mortgage  on  the  same  lot,  and  the  purchaser's 
interest  in  another  lot,  and  caused  the  prior  mortgage  to 
be  canceled  and  satisfied  of  record.  When  suit  was 
brought  to  foreclose  the  mortgage,  the  purchaser's  wife 
intervened  and  claimed  the  premises  as  a  homestead,  but 

'  Carr  v.  Caldwell,  10  Cal.  380;  70  Am.  Dec.  740. 

'  Stewart  v.  ^mith,  36  Minn.  82;  1  Am.  St.  Rep.  651.  See,  also,  Ban- 
ning ?;.  Edes,  6  Minn.  402;  Summers  v.  Darne,  31  Gratt.  791. 

»  Stewart  v.  Smitli,  36  Minn.  82;  1  Am.  St.  Hep.  651.  Said  Mr. 
Justice  Mitchell,  speaking  for  the  court:  "  Tiie  rule,  as  generally  stated 
in  the  books,  is,  that  to  give  a  purchase  money  mortgage  this  precedence, 
it  must  have  been  executed  einiultaneouHly,  or  at  tlie  same  time,  with 
the  deed  of  purchase.     Some  ground  for  a  narrow  and  literal  construe- 


§  C)43b  REGISTRATION    OF    DEEDS.  862 

the  court  decided  that  the  land  was  liable  for  the  re- 
mainder of  the  purchase  money  regardless  of  the  purpose 
to  which  it  might  be  devoted,  but  allowed  the  mortgagee 
to  make  out  of  the  lot  claimed  as  a  homestead  only  the 
actual  am.ount  of  the  purchase  money  and  interest  re- 
maining due,  holding  that  for  the  excess  over  such  pur- 
chase money,  he  must  proceed  on  his  other  security,  or 
against  the  party,  but  not  against  the  homestead.^  Where 
a  man  who  is  married  occupies  property  as  a  tenant,  and 
concludes  to  purchase,  borrowing  the  whole  of  the  pur- 
chase money  from  another  and  mortgaging  the  premises 
to  him  to  secure  the  payment  of  the  sum  borrowed,  al- 
though his  wife  may  not  sign  the  mortgage,  still  the  home- 

tion  of  this  language  is  furnished  by  the  fact  that  the  reason  usually 
assigned  for  the  doctrine  is  the  technical  one  of  the  mere  transitory 
seisin  of  the  mortgagor,  rather  than  the  superior  equity  which  the  mort- 
gagee has  to  be  paid  the  purchase  money  of  the  land  before  it  sliali  be 
subjected  to  other  claims  against  the  purchaser.  But  it  is  evident,  both 
upon  principle  and  authority,  that  what  is  meant  by  this  statement  of 
the  rule  is  not  that  the  two  acts — the  execution  of  tiie  deed  of  purchase, 
and  the  execution  of  the  mortgage — should  be  literally  simultaneous. 
This  would  be  almost  an  impossibility.  Some  lapse  of  time  must  nec- 
essarily intervene  between  the  two  acts.  An  examination  of  the  cases 
will  shov/  that  the  real  test  is  not  whether  the  deed  and  mortgage  were 
in  fact  executed  at  the  same  instant,  or  even  on  the  same  day,  but 
whether  they  were  parts  of  one  continuous  transaction,  and  so  intended 
to  be,  so  that  the  two  should  be  given  contemporaneous  operation  in 
order  to  promote  the  intent  of  the  parties:  1  Washburn  on  Real  Prop- 
erty, *178;  Wheatleyi;.  Calhoun,  12  Leigh,  264;  37  Am.  Dec.  654;  Love 
V.  Jones,  4  Watts,  465 ;  Snyder's  Appeal,  91  Pa.  St.  477.  Hence,  it  will 
be  found  that  in  some  of  the  cases  the  fact  that  the  mortgage  was  exe- 
cuted pursuant  to  an  agreement  made  prior  to  the  execution  of  the  deed 
of  purchase  has  been  the  controlling  consideration  upon  which  the 
mortgage  has  been  given  precedence,  although  not  in  fact  until  some 
time  after  the  execution  of  the  deed.  The  reason  is,  that  such  a  state  of 
facts  would  show  that  both  acts  were  but  parts  of  the  same  continuous 
transaction.  As  evidence  of  the  fact,  such  previous  agreement  would 
have  equal  probative  force,  although  it  might  not  be  enforceable, 
because  not  in  writing  and  within  the  statute  of  frauds.  Even  if  such 
agreement  while  executory  was  not  enforceable,  yet  when  once  executed 
by  the  execution  of  the  mortgage,  it  becomes  as  effectual  as  if  originally 
in  writing,  and  in  equity  will  be  deemed  [if  the  rights  of  no  innocent 
purchaser  have  intervened]  as  taking  effect  by  relation  as  of  the  dale  of 
the  agreement." 

1  Dillon  V.  Byrne,  5  Cal.  455. 


8G3  REGISTRATION    OF    DEEDS.  §  644 

stead  is  subject  to  the  mortgage,  as  the  deed  and  mortgage 
are  to  be  considered  as  parts  of  the  same  transaction.'- 

§  644.  Administrator's  sale  and  prior  unrecorded  con- 
veyance.— An  unrecorded  deed  or  mortgage  binds  tlie  mort- 
gagor and  his  administrator.^  The  administrator  is  a 
trustee,  and  succeeds  to  such  rights  as  the  intestate  pos- 
sessed, and  no  other.  An  interesting  case  in  which  this 
principle  was  applied  occurred  in  Indiana.  An  intestate 
executed  a  mortgage  on  certain  real  estate  to  secure  the 
purchase  money.  This  mortgage  was  not  recorded,  and 
the  administrator,  having  no  knowledge  of  its  existence, 
sold  the  land  under  an  order  of  court,  for  the  purpose  of 
producing  assets  to  meet  claims  against  the  estate,  the  es- 
tate being  insolvent.  The  purchaser  at  this  sale  was  also 
ignorant  of  this  mortgage,  paid  the  whole  of  the  purchase 
money,  which  was  a  full  and  fair  price  for  the  property, 
and  took  a  proper  conveyance.  Tiie  question  presented  to 
the  court  for  decision  was  whether  the  mortgagee,  whose 
mortsaffe  was  not  recorded,  was  entitled  to  pavment  out 
of  the  proceeds  of  the  real  estate  in  preference  to  general 
creditors.  The  court  held  that  the  proceeds  of  the  sale 
were  subject  to  the  mortgagee's  lien,  and  that  he  was  en- 
titled to  such  preference.'  The  court  discussed  the  question 
in  its  various  aspects  at  considerable  length.  "It  is  only 
subsequent  purchasers  and  encumbrancers  in  good  faith 
who  are  protected  against  an  unrecorded  mortgage.  As 
against  all  the  world  besides,  the  registry  imparts  no  virtue 
or  force  whatever  to  the  instrument.  As  against  the  mort- 
gagor, and  the  estate  while  it  remains  in  his  hands,  the 
lien  is  as  perfect  without  registry  as  it  is  with  it.  It  is 
so,  also,  against  his  general  creditors,  while  he  lives,  and 
after  his  death.  No  change  was  wrought  in  the  rights  of 
the  mortgagee  with  respect  to  the  other  creditors  by  his 
decease.     The  administrator  was  his  personal  representa- 

1  Lassen  v.  Vance,  8  Cal.  271. 

*  Amirewa  v.  Burns,  11  Ala.  691. 

»  Kirkj.atrick  v.  CJaMwcU,  32  Ind.  299. 


§  644  REGISTRATION    OF    DEEDS,  864 

tive,  and,  of  course,  took  no  better  right  than  the  intestate 
had.  Indeed,  he  took  no  estate  whatever  in  the  lands 
mortgaged,  but  a  duty  with  reference  thereto  fell  upon 
him  in  the  performance  of  his  trust,  when  it  was  discov- 
ered that  its  sale  would  be  necessary  to  satisfy  indebted- 
ness. This  was  to  file  a  petition  for  such  sale,  stating, 
amongst  other  things,  the  nature  of  the  intestate's  title. 
This  implies  some  diligence  to  ascertain  the  precise  fact. 
Mere  ignorance  is  no  excuse  for  him.  It  is  his  duty  to 
know  the  truth;  and,  indeed,  he  is  unfaithful  to  his  trust 
if  he  fails  to  inform  himself  of  the  entire  condition  of  the 
whole  estate,  unless,  indeed,  proper  diligence  fails  to  dis- 
cover it.  This  record  merely  discloses  his  want  of  knowl- 
edge, and  we  are  not  able  to  perceive  why  that  circum- 
stance should  in  any  manner  influence  the  decision  of  the 
question  before  us.  Why  should  general  creditors  derive 
an  advantage  from  the  administrator's  ignorance  of  a 
fact?  They  have  not  acted  upon  it  to  their  injury.  If 
this  ignorance  was  the  result  of  his  negligence  in  making 
inquiry,  and  shall  profit  one  creditor  at  the  expense  of 
another,  then  the  rights  of  creditors  in  the  fund  would 
depend  much  upon  the  care  and  attention  which  the  ad- 
ministrator brings  to  the  performance  of  his  duties;  and 
we  suppose  this  cannot  be.  We  are  of  the  opinion  that 
the  fact  that  the  administrator  did  not  know  of  the  exist- 
ence of  the  mortgage  may  be  laid  out  of  the  case  as  an 
element  wholly  immaterial."  "It  certainly  cannot  be  of 
avail  to  the  general  creditors  that  they  had  no  notice  of 
the  mortgage.  They  are  not  in  a  position  to  avail  them- 
selves of  such  want  of  notice,  not  being  purchasers  or 
encumbrancers."  To  the  argument  that,  if  the  mort- 
gagor had  sold  the  land  to  an  innocent  purchaser  and 
received  the  purchase  money  during  his  lifetime,  the 
mortgagee  would  not  be  permitted  to  pursue  the  fund  in 
his  hands,  but  must  have  rested  content  with  the  result 
of  his  remedy  at  law  in  personam,  and  hence,  as  a  logical 
result,  could  not  follow  the  proceeds  in  the  hands  of  the 
administrator,  the  court  replied:  "The  argument  has  ap- 


865  REGISTRATION    OF    DEEDS.  §  645 

parent  force,  and,  indeed,  would  be  convincing  if  the 
administrator  held  the  fund  as  the  mortgagor  would  hold 
it  in  the  case  supposed.  In  the  absence  of  fraud,  the  lat- 
ter would  hold  it  in  his  own  right,  but  the  administrator 
holds  it  as  a  mere  trustee,  to  be  disposed  of  under  the  con- 
trol of  the  court,  in  the  payment  of  debts,  and  any  surplus 
by  distribution.  If  the  existence  of  the  mortgage  had  been 
stated  in  the  petition  for  the  sale  of  the  land,  as  it  should 
have  been,  if  known,  the  court  would  have  ordered  the 
sale  subject  to  the  mortgage,  or  else  for  the  payment 
thereof,  as  might  have  been  adjudged  best.  In  the  latter 
case,  the  administrator's  duty  would  have  required  him  to 
apply  the  proceeds  of  the  sale,  so  far  as  necessary,  to  the 
payment  of  the  mortgage  debt;  and  the  court  would  have 
enforced  this  duty.  But  in  the  present  case  the  adminis- 
trator, in  applying  for  power  to  sell,  did  not  inform  the 
court  of  the  mortgage,  and  consequently  the  decree  made 
no  provision  for  it,  and  the  purchaser,  being  without 
notice,  took  title  free  from  the  mortgage,  paying  a  cor- 
responding price.  The  money  is  in  the  hands  of  the 
administrator,  and  no  equities  have  intervened  in  behalf 
of  other  creditors.  There  is  no  reason,  therefore,  why 
the  court  should  not,  for  the  purposes  of  justice,  follow 
the  proceeds,  still  in  reach,  and  subject  them  to  the  lien 
which  originally  subsisted  against  the  land,  as  is  habitu- 
ally done  in  other  cases  of  trusts,  where  the  trustee  has 
either  willfully  or  ignorantly  violated  his  duty  by  dispos- 
ing of  the  trust  estate."  ^ 

§  645.     Compliance  with  preliminary  requirements. — 

To  entitle  a  deed  to  be  recorded,  all  preliminary  require- 
ments must  be  complied  with.  It  must  be  properly  exe- 
cuted and  acknowledged.  If  the  deed  is  defective  in  any 
of  these  particulars,  the  rule  is  firmly  established,  that 
spreading  it  upon  the  record  does  not  give  constructive 

'  Kirkpatrick  v.  Caldwell,  supra,  per  Frazer,  C.  J.    And  eee  Stewart 
V.  Mathews,  19  J^la,  752. 
Deki>3,  Vol.  II. —  55 


§  645  REGISTKATIOX    OF   DEEDS.  866 

notice  of  its  contents.'  "Without  an  acknowledgment, 
the  recording  of  the  deed  could  have  no  effect  as  to  notice, 
for  the  statute  requires  the  deed  to  be  executed  and  ac- 
knowledged and  then  recorded,  to  operate  as  constructive 

notice And  if  this  acknowledgment  be  defective 

in  not  showing  that  the  person  who  took  the  acknowl- 
edgment had  a  right  to  take  it,  the  act  does  not  appear  to 
be  official,  and  is  not  a  compliance  with  the  statute.  And 
where  a  purchaser  is  to  be  charged  with  constructive  notice 
from  the  mere  registration  of  a  deed,  all  the  substantial 
requisites  of  the  law  should  be  complied  with.  As  well 
might  it  be  contended  that  a  recorded  deed  without  an 
acknowledgment  would  be  notice,  as  that  it  would  be  no- 
tice with  a  defective  acknowledgment."  ^     An  instrument 

»  Pope  V.  Henry,  24  Vt.  560;  Stevens  v.  Hampton,  46  Mo.  408;  Gait 
v.  Dibrell,  10  Yerg.  146;  Lewis  v.  Baird,  3  McLean,  56;  McMinn  v. 
O'Connor,  27  Cal.  238 ;  Holliday  v.  Cromwell,  26  Tex.  188 ;  Chouteau  v. 
Jones,  11  111.  300;  50  Am.  Dec.  460;  Whitehead  v.  Foley,  28  Tex.  268; 
Walker  v.  Gilbert,  1  Freem.  Ch.  85;  Blood  v.  Blood,  23  Pick.  80;  Hern- 
don  V.  Kimball,  7  Ga.  432;  50  Am.  Dec.  406;  Isham  v.  Bennington  Iron 
Co.,  19  Vt.  230;  Suiter  v.  Turner,  10  Iowa,  517;  Reynolds  v.  Kingsbury, 
15  Iowa,  238 ;  Bishop  v.  Schneider,  46  Mo.  472 ;  2  Am.  Eep.  533  ;  Brinton 
V.  Seevers,  12  Iowa,  389 ;  Mummy  v.  Johnson,  3  Marsh.  A.  K.  220 ;  Schults 
V.  Moore,  1  McLean,  523;  Ely  v.  Wilcox,  20  Wis.  523;  91  Am.  Dec.  436; 
Brown  v.  Lunt,  37  Me.  423;  Edwards  v.  Brinker,  9  Dana,  69:  Pringle  v. 
Dunn,  37  Wis.  449;  19  Am.  Rep.  772;  Johns  v.  Eeardon,  3  Md.  Ch.  57; 
De  Witt  V.  Moulton,  17  IV^e.  418;  Stevens  v.  Morse,  47  N.  H.  532;  Harper 
V.  Reno,  1  Freem.  Ch.  323;  Graham  v.  Samuel,  1  Dana,  166;  Barney  v. 
Little,  15  Iowa,  527;  Cockey  v.  Milne,  16  Md.  200;  White  v.  Denman,  1 
Ohio  St.  110 ;  Hodgson  v.  Butts,  3  Cranch,  140 ;  Sumner  v.  Rhodes,  14 
Conn.  135;  Carter  v.  Champion,  8  Conn.  549;  21  Am.  Dec.  695;  Work 
V.  Harper,  24  Miss.  517;  Thomas  v.  Grand  etc.  Bank,  9  Smedes  &  M. 
201;  Strong  v.  Smith,  3  McLean,  362;  Green  v.  Drinker,  7  Watts  &  S. 
440;  Parkist  v.  Alexander,  1  Johns.  Ch.  394;  Heister  v.  Fortner,  2  Binn. 
40;  4  Am.  Dec.  417.  See,  also.  Kerns  v.  Swope,  2  Watts,  75;  Graves  v. 
Graves,  6  Gray,  391 ;  Shaw  v.  Poor,  6  Pick.  88 ;  17  Am.  Dec.  347 ;  Harper 
V.  Barsh,  10  Rich.  Eq.  149;  Cheney  v.  Watkins,  1  Har.  &  J.  527;  2  Am. 
Dec.  530;  TiUman  v.  Cowand,  12  Smedes  &  M.  262;  Burnham  v.  Chand- 
ler, 15  Tex.  441 ;  Bossard  v.  White,  9  Rich.  Eq.  483 ;  Brydon  v.  Campbell, 
40  Md.  331 ;  Bass  v.  Estill,  50  Miss.  3C0;  Fleming  v.  Ervin,  6  W.  Va.  215; 
Dussaume  v.  Burnett,  5  Iowa,  95 ;  McKean  v.  Mitchell,  35  Pa.  St.  269 ; 
78  Am.  Dec.  335 ;  Galpin  v.  Abbott,  6  Mich.  17. 

2  Schults  V.  Moore,  1  McLean,  520,  527 ;  Wood  v.  Cochrane,  39  Vt.  544; 
Jones  V.  Berkshire,  15  Iowa,  248;  83  Am.  Dec.  412;  Todd  t>.  Outlaw,  79 
N.  C.  235.    And  see  McMinn  v.  O'Connor.  27  Cal.  238.     See  Masterson 


867  REGISTRATION    OF    DEEDS.  §  645 

is  not  entitled  to  record  when  it  purports  to  have  been 
signed  and  acknowledged  by  a  firm,  and  in  a  firm  name. 
It  must  appear  by  which  member  of  the  firm  this  was 
done.^  Where  a  deed  of  a  corporation  is  duly  sealed,  and 
is  in  all  respects  properly  recorded,  except  that  the  record 
fails  to  show  a  copy  of  the  seal,  or  any  device  represent- 
ing it,  such  record  is  valid  and  sufficient  to  operate  as 
notice,  if  it  represents  on  its  face,  in  any  other  way,  that 
the  deed  was  in  fact  sealed.^ 

V.  Todd,  6  Tex.  Civ.  App.  131 ;  24  S.  W.  Rep.  682.  Where  an  agreement 
is  made  between  a  landowner  and  a  water  company,  creating  a  lien  on 
land  for  water  supplied,  the  acknowledgment  of  the  agreement  by  tlie 
landowner  entitles  it  to  record,  and  its  registration  imparts  notice  to 
subsequent  purchasers  under  him  of  the  lien :  Fresno  Canal  etc.  Co.  v. 
Eowell,  80  Cal.  114;  13  Am.  St.  Rep.  112.  And  see  Spect  v.  Gregg,  51 
Cal.  198.  Where  it  is  necessary  that  a  conveyance  should  be  sealed,  an 
instrument  to  which  a  seal  is  not  affixed  is  not  entitled  to  be  recorded : 
Racouilkit  v.  Sansevain,  32  Cal.  375;  Racouillat  v.  Rene,  32  Cal.  450.  In 
the  latter  case.  Sawyer,  J.,  said:  "The  instrument  of  April  13,  1851,  is 
not  under  seal,  and  whether  properly  acknowledged  in  other  respects  or 
not,  was  not  entitled  to  record  under  the  act  concerning  conveyances 
as  it  stood  at  the  date  of  the  instrument.  The  record,  therefore,  did 
not  impart  constructive  notice  of  its  contents  to  anybody ;  and  unless 
Rene  had  actual  notice  of  the  contract  embraced  in  the  instrument,  he 
was  not  affected  by  it."  But  see  Wallace  v.  Moody,  26  Cal.  387.  If  the 
instrument,  however,  was  sealed  in  a  proper  manner  when  it  was  exe- 
cuted, it  is  not  invalidated  by  a  subsequent  loss  of  the  seal,  unless  the 
seal  was  removed  before  it  was  presented  for  registration,  and  the  party 
who  attempts  to  invalidate  the  instrument  has  the  burden  of  proof :  Van 
Riswick  V.  Goodhue,  50  Md.  57.  If  the  statute  requires  a  conveyance  to 
be  attested  by  two  witnesses  to  entitle  it  to  registration,  and  a  convey- 
ance is  thus  witnessed,  but  is  recorded  by  mistake  without  copying  the 
attestation,  the  record,  as  it  is,  is  not  constructive  notice :  Pringle  v, 
Dunn,  37  Wis.  449;  19  Am.  Rep.  772;  Frostburg  v.  Brace,  51  Md.  508; 
Potter  V.  Strausky,  48  Wis.  235;  Gardner  v.  Moore,  51  Ga.  268;  Hastings 
V.  Cutler,  24  N.  H.  481;  Morrill  v.  Morrill,  60  Vt.  74;  6  Am.  St.  Rep. 
93;  Carler  v.  Campion,  8  Conn.  549;  21  Am.  Dec.  695.  A  record  of  a 
mortgage  is  notice  to  subsequent  purchasers  in  favor  of  a  person  who 
holds  an  assignment  of  the  mortgage  duly  recorded,  if  the  acknowledg- 
ment is  in  proper  form  and  the  defect  is  not  apparent,  as  where  the  offi- 
cer who  took  it  acted  out  of  his  jurisdiction:  Heilbrun  v.  Hammond,  13 
Hun,  474. 

1  Sloan  V.  Owens  etc.  Machine  Co.,  70  Mo.  206.  The  seal  of  the  offi- 
cer taking  the  acknowledgment  is  essential  to  its  due  registration:  Mas- 
terson  v.  Todd,  6  Tex.  Civ.  Ap.  131. 

»  Heath  v.  Big  Falls  Cotton  Mills,  115  N.  C.  202. 


§  G4G  REGISTRATION    OF    DEEDS.  868 

§  646.  Illustrations  —  Attesting-  witnesses.  —  This 
principle  is  most  often  applied  in  the  case  of  defective  ac- 
knowledgments. But  all  other  requirements  of  the  stat- 
ute antecedent  to  registration  must  be  complied  with  to 
make  the  record  notice.  If,  for  instance,  a  mortgage  with 
only  one  subscribing  witness  is,  by  the  provisions  of  a 
statute,  void  as  a  legal  mortgage,  the  registration  of  such 
an  instrument  will  not  raise  the  presumption  of  notice  to 
a  purchaser  from  the  mortgagor.^  In  Connecticut  the 
same  question  was  similarly  decided.  The  court  carefully 
considered  the  question,  and  held  that  the  registration  of 
a  deed,  defective  in  having  but  one  legal  witness,  was  not 
constructive  notice  of  such  conveyance.  The  considera- 
tions by  which  the  court  was  governed  in  arriving  at  this 
conclusion  are  fully  stated  in  the  portion  of  the  opinion 
quoted  in  the  note.^ 

^  Harper  v.  Barsh,  10  Rich.  Eq.  149:  Thompson  v.  Morgan,  6  Minn. 
292;  White  v.  Denman,  16  Ohio,  59;  Van  Thorniley  v.  Peters,  26  Ohio, 
St.  471;  Hodgson  v.  Butts,  1  Oranch,  488;  New  York  Life  Ins,  etc.  Co. 
V.  Staats,  21  Barb.  570;  Frostburg  Mut.  Building  Assn.  v.  Brace,  51  Md. 
508;  Gardner  v.  Moore,  51  Ga.  268;  VanRiswickv.  Goodhue,  50Md.57j 
Ross  V.  Worthington,  11  Minn.  438;  88  Am.  Dec.  95;  Van  Thorniley  v, 
Peters,  26  Ohio  St.  471 ;  White  v.  Magarahan,  87  Ga.  217  ;  Potter  v. 
Stransky,  48  Wis.  235 ;  Morrill  v.  Morrill,  53  Vt.  74 ;  38  Am.  Rep.  659. 

*  Carter  v.  Champion,  8  Conn.  549;  21  Am.  Dec.  695.  Said  Williams, 
J:  "  The  question  then  comes  to  this:  Is  the  registering  of  a  defective 
deed  constructive  notice  so  as  to  bind  third  persons?  Here  it  is  to  be 
remarked,  that  the  registering  of  a  deed  is  a  legislative  regulation, 
founded  indeed  upon  the  best  principles  of  policy  for  the  security  of 
titles,  but  still  depending  for  its  effect  upon  the  true  construction  of  the 
statute.  Our  statute  has  prescribed  the  manner  in  which  deeds  of  land 
shall  be  executed ;  that  they  shall  be  attested  by  two  witnesses,  acknowl- 
edged before  a  magistrate,  and,  to  make  them  effectual  against  third  per- 
sons, shall  be  recorded.  The  deed  to  be  recorded,  then,  is  the  deed 
spoken  of  in  the  statute;  that  is,  a  deed  executed  according  to  the  stat- 
ute, not  the  instrument  merely  which  the  common  law  would  denomi- 
nate a  deed,  but  the  instrument  which  has  the  statute  requisites  to  give 
it  validity  as  a  deed ;  because  no  other  instruments  are  recognized  as 
grants  and  deeds  of  'houses  and  lands,'  the  statute  being  express  that 
no  grant  or  deed  of  land  shall  be  valid  unless  written,  subscribed,  wit- 
nessed, and  acknowledged,  as  aforesaid.  In  one  case  only,  a  provision  is 
made  for  a  deed  not  completed  according  to  the  requisites  of  the  statute  j 
and  that  is  where  the  grantor  refuses  to  make  an  acknowledgment. 
Then,  in  conformity  to  a  similar  provision  in  the  civil  law,  the  grantee 


869  REGISTRATION  OF  DEEDS.  §  646  a 

§  04:6  a.  Statutes  requiring  payment  of  taxes  prior 
to  registration. — ^^Iii  some  States  it  is  provided  by  statute 
that  a  deed  cannot  be  recorded  unless  it  appears  by  a 
proper  certificate  that  the  taxes  charged  upon  the  land 
have  been  paid,  and  that  no  outstanding  tax  liens  or  titles 
exist.  These  statutes  have  been  attacked  as  being  uncon- 
stitutional, for  attempting  to  interfere  with  the  acquisition 
and  disposition  of  property,  and  as  taking  property  with- 
out due  process  of  law.  On  this  question  there  is  a  diver- 
gence   of    opinion.      The    views    of    one    court  are  thus 

may  leave  a  copy  of  his  deed,  with  a  claim  of  title,  with  the  register, 
which  secures  his  title  until  a  legal  trial  has  been  had.  This  exception 
shows  that  in  all  other  cases,  the  deeds  completed  in  the  manner  re- 
quired by  statute  were  intended.  That  this  is  not  a  deed  of  that  char- 
acter, the  whole  object  of  the  bill  shows.  Is  the  recording,  then,  of  such 
an  instrument  of  any  effect?  It  may,  indeed,  be  evidence  tending  to 
prove  actual  notice;  but  when  the  fact  of  actual  notice  is  negated,  as  it 
is  in  this  case,  can  the  record  have  any  effect  upon  third  persons?  Now,  if 
this  be  a  rule  of  policy,  adopted  by  the  legislature,  the  court  is  not  to  extend 
it  to  the  cases  not  within  its  provisions,  and  should  it  be  extended  to 
the  case  on  trial,  I  know  not  where  we  are  to  stop,  or  what  line  to  draw. 
If  it  be  said  that  no  prudent  man  will  stop  without  looking  at  the  rec- 
ord, that  may  be  said  as  truly  in  any  other  case  as  in  this,  and  would  be 
equally  applicable  to  any  other  defect.  But,  in  point  of  fact,  we  know 
purchases  are  often  made,  where  from  the  distance  of  the  record,  or  a 
reliance  upon  the  integrity  of  the  grantor,  no  such  examination  is  made, 
and  although  this  is  no  excuse  for  a  party,  where  his  case  is  within  the 
act,  yet  it  may  have  been  the  reason  why  the  legislature  did  not  extend 
the  provisions  of  the  act  to  cases  of  this  kind.  But  whatever  may  have 
been  their  reasons,  it  is  sufficient  for  me  that  they  have  not  done  so." 

"Where  an  instrument  is  required  to  be  acknowledged  before  two  jus- 
tices of  the  peace,  the  record  of  an  instrument  acknowledged  before  one 
justice  only  is  not  notice:  Dufphey  v.  Frenaye,  5  Stewt.  &  P.  215.  The 
record  of  a  conveyance  of  a  married  woman  is  not  notice  when  the  ac- 
knowledgment is  not  taken  separate  and  apart  from  her  husband:  Arm- 
strong V.  Ross,  20  N.  J.  Eq.  109.  If  a  statute  requires  that  a  certificate 
of  the  official  character  of  the  officer  shall  accompany  the  certificate  of 
acknowledgment,  this  must  be  done  to  make  the  record  notice;  but  the 
certificate  may  be  obtained  afterward,  and  if  properly  recorded  the  con- 
veyance is  considered  as  recorded  from  the  time  at  which  this  certificate 
is  filed:  Reasoner  v.  Edmundson,  5  Ind.  393;  Ely  v.  Wilcox,  20  Wis. 
523;  91  Am.  Dec.  436,  An  instrument  is  not  entitled  to  registration 
wlure  the  certificate  of  acknowledgment  designates  the  persons  who 
make  tlie  acknowledgment  as  "grantors  of  the  within  indenture,"  omit- 
ting the  statement  that  they  are  known  to  the  officer  to  be  the  persons 
who  executed  the  conveyance:  Fryer  v.  Rockefeller,  G3  N.  Y.  2tj8. 


§  646  b  REGISTRATION    OF    DEEDS.  870 

expressed:  "If  the  law  provided  a  means  by  which  the 
validity  of  the  tax  could  be  determined  before  payment, 
and  protected  the  party  meanwhile  by  providing  for  a 
temporary  receipt  of  the  deed,  or  otherwise,  it  probably 
could  be  sustained  as  constitutional,  even  though  it  should 
put  the  burden  of  proving  the  illegality  of  the  tax  upon 
the  grantee,  which,  however,  would  look  like  an  unneces- 
sary hardship,  when  we  consider  the  power  possessed  by 
the  State  to  enforce  the  collection  of  its  revenues.  In  the 
case  of  small  illegal  charges,  the  act  in  question  practi- 
cally inaugurates  a  system  of  petty  robbery  by  the  State, 
for  the  costs  of  a  suit  to  recover  small  sums  paid  would 
prevent  parties  from  bringing  them.  It  is  not  a  taking 
by  due  process  of  law,  and  it  conflicts  in  a  measure  with 
the  constitutional  provision  declaring  that  private  prop- 
erty shall  not  be  taken  for  public  purposes  without  just 
compensation  having  been  first  made  or  paid  into  court 
for  the  owner.  The  act  is  rather  judicial  than  legislative 
in  character.  It,  in  effect,  declares  or  adjudges  all  taxes 
shown  by  the  records  as  a  charge  upon  real  estate  to  be 
lawful,  or  it  practically  authorizes  the  State  to  compel 
payment  of  illegal  demands.  The  constitutional  provision 
declaring  that  no  person  shall  be  deprived  of  life,  liberty, 
or  property  without  due  process  of  law,  is  not  limited  to 
judicial  proceedings,  but  extends  to  every  proceeding 
which  may  interfere  with  those  rights,  whether  judicial^ 
administrative,  or  executive."^ 

§  646  b.     Such  statutes  held  to  be  constitutional. — On 

the  other  hand,  similar  statutes  have  been  held  to  be  con- 
stitutional on  the  ground  that  the  legislature  has  power  to 
provide  for  the  manner  of  transferring  title  to  real  estate, 
and  for  the  registration  of  conveyances.  The  statute,  it  is 
said,  may  provide  what  instruments  shall  be  recorded,  and 
how  they  shall  be  executed  and  authenticated  so  as  to  entitle 
them  to  registration,  and  may  prescribe  any  other  rule, 
regulation,  or  condition  of  a  legislative  character  that  may 

1  State  ex  rel.  Baldwin  v.  Moore,  7  Wash.  173;  34  Pac.  Rep.  461. 


871  REGISTRATION    OF    DEEDS.  §  646  b 

be  deemed  wise.^  In  Michigan,  where  a  statute  of  similar 
import  exists,  it  was  contended  that  the  law  was  void, 
because,  among  other  reasons,  it  was  an  unwarrantable 
infringement  of  property  rights.  But  the  court,  per 
Mr.  Justice  Grant,  said  it  thought  otherwise,  and  con- 
tinued: "Mere  inconvenience,  however  great,  is  not  suf- 
ficient to  defeat  a  law.  That  is  a  consideration  for  the 
legislature,  and  not  for  the  court.  The  State  may  enact 
stringent  measures  to  enforce  the  collection  of  the  public 
revenue.  The  law  provides  ample  remedies  for  the  prop- 
erty owner  to  contest  the  validity  of  the  tax  assessed 
against  him.  He  may  pay  the  tax  under  protest,  and  at 
once  bring  suit  to  recover  it  back.  He  may  appear  in 
court  when  the  State  brings  suit  to  foreclose  its  lien,  and 
there  contest  its  validity.  The  register  of  deeds  is  a  con- 
stitutional officer,  but  the  conditions  under  wdiich  deeds 
are  entitled  to  record  are  entirely  within  the  discretion  of 
the  legislature,  and  the  court  cannot  declare  them  void  be- 
cause they  are  harsh.  Besides,  the  recording  of  the  deed  is 
not  necessary  to  pass  title.  The  registry  law  is  only  de- 
signed to  record  and  preserve  evidence  of  title.  Title  passes 
upon  the  execution  of  the  deed,  and  possession  under  it  is 
notice  to  all  of  the  rights  of  the  grantee  in  possession."^ 

1  State  V.  Register  of  Deeds  of  Eamsey  Co.,  26  Minn.  521 ;  6  N.  W. 
Eep.  337.  The  statute  referred  to  in  this  case  provided,  "  Wlion  any  deed, 
plat  of  any  townsite,  or  instrument  affecting  the  same,  or  any  other 
conveyance  of  real  estate,  is  presented  to  the  county  auditor  for  transfer, 
he  shall  ascertain  from  the  books  and  records  in  his  office  if  there  be 
delinquent  taxes  due  upon  the  land  described  therein,  or  if  it  has  been 
sold  for  taxes ;  and  if  tliere  are  delinquent  taxes  due,  he  shall  certify  to 
the  same ;  and  upon  the  payment  of  such  delinquent  or  other  taxes  that 
may  be  in  the  hands  of  the  county  treasurer  for  collection,  he  shall 
transfer  the  same,  and  note  upon  every  deed  of  real  property  so  trans- 
ferred, over  his  official  signature,  'taxes  paid  and  transfer  entered' ;  or 
if-  the  land  descriiied  has  been  sold  or  assigned  to  an  actual  purchaser 
for  taxes,  'paid  by  sale  of  land  described  within' ;  and,  unless  such  state- 
ment is  made  upon  such  deed  or  other  instrument,  the  register  of  deeds 
shall  refuse  to  receive  or  record  the  same.  A  violation  of  the  provisions 
of  this  section  by  the  register  of  deeds  shall  be  deemed  a  misdemeanor, 
and,  upon  conviction  thereof,  he  shall  be  punished  by  a  fine  of  not  less 
than  line  hundred  dollars,  nor  exceeding  one  thousand  dollars." 

»  Van  iiiisan  v.  lleames,  96  :Mich.  504;  50  N.  W.  Kep.  22. 


§  646  C  REGISTRATION    OF    DEEDS.  872 

§  646  c.  Coinmeuts. — We  have  gone  into  this  matter 
somewhat  fully  because  the  tendency  of  modern  legislation 
is  to  provide  methods  for  speedily  enforcing  the  payment 
of  taxes,  and  to  abolish,  so  far  as  statutes  can  effect  the 
object,  the  strict  rules  by  which  every  step  in  a  tax  pro- 
ceeding was  formerly  measured.  Statutes  requiring  all 
taxes  to  be  paid  before  any  instrument  affecting  real 
estate  shall  be  recorded,  seems  to  supply  an  easy  and 
efficacious  way  of  forcing  the  payment  of  taxes.  What- 
ever may  be  said  against  the  policy  of  such  legislation  on 
the  ground  that  it  compels  the  payment  of  taxes,  although 
they  may  be  invalid,  and  leaves  the  person  paying  to  the 
doubtful  remedy  of  recovering  the  money  in  a  suit,'  still, 
in  our  mind,  these  are  not  just  objections  to  their  consti- 
tutionality. The  right  to  have  a  deed  recorded  is  purely 
one  of  statutory  origin.  For  the  purpose  of  providing  a 
uniform  and  convenient  method  of  giving  notice  of  claims 
to  real  estate,  where  actual  notice  does  not  exist,  the  State 
has  provided  a  means  for  registering  instruments  affect- 
ing the  title  to  land.  The  State  has  made  the  observance 
of  certain  preliminary  requirements  essential  to  the  com- 
plete effect  of  the  record.  It  prescribes  that  the  instru- 
ment shall  be  acknowledged,  and  in  what  manner.  It  may 
prescribe  that  the  deed  shall  he  attested  by  witnesses, 
shall  be  subject  to  a  stamp  tax,  and  may  likewise  prescribe 
any  other  condition.  If  a  person  does  not  wish  to  record 
a  deed,  it  cannot  be  said  that  he  has  lost  any  constitu- 
tional privilege.  His  title  is  in  no  manner  affected.  The 
title  passes  by  the  execution  and  delivery  of  the  convey- 
ance, and  if  he  assumes  possession,  his  rights  are  com- 
plete. If  he  desires  to  avail  himself  of  certain  statutory 
privileges,  by  which  he  may  be  enabled  to  give  construc- 
tive notice  of  his  interest,  he  is  not  deprived  of  this  right, 
but  must  exercise  it  on  compliance  with  the  conditions 
prescribed.  The  State  is  under  no  obligation  to  provide 
a  registry  law  at  all.  It  is  true  that  in  every  State  in  the 
Union  registry  laws  are  in  force,  but  this  is  only  because 

^  See  §§  1349-1351,  post. 


873  REGTSTRATIOX    OF    DEEDS.  §  647 

public  convenience  has  found  tliem  necessary.  But  so  far 
as  any  principle  of  constitutional  law  is  involved,  all  these 
laws  miglit  be  repealed.  If  they  can  be  absolutely 
repealed,  the  State  certainly  has  power  to  modify  them 
by  determining  what  instruments  shall  be  recorded,  and 
by  declaring  the  conditions  which  those  wishing  to  obtain 
the  benefit  of  the  registry  laws  must  observe.  If  one  of 
these  conditions  be  the  payment  of  all  taxes  antecedently 
levied,  the  State,  in  our  judgment,  has  power  to  prescribe 
it,  and  such  a  provision,  on  this  ground,  cannot  be  held  to 
be  unconstitutional. 

§  647.     Attachment  at  time  of  acknowleclg-ment. — A 

deed  was  acknowledged  before  a  register  of  deeds,  and 
given  to  him  to  be  recorded.  At  the  same  instant,  the 
real  estate  described  in  the  deed  was  attached  by  a  cred- 
itor of  the  grantor.  On  the  ground  that  the  deed  could 
not  be  recorded  without  a  certificate  of  the  acknowledg- 
ment, and  it  must  have  required  some  time  to  write  out 
the  certificate,  the  attachment  was  held  to  have  priority 
over  the  deed.^  The  court  said:  "It  was  not  in  a  state  to 
be  considered  as  recorded  until  after  the  attachment  was 
made.  It  should  not  only  be  acknowledged,  but  the  cer- 
tificate of  acknowledgment  should  be  completed  before 
the  delivery  to  the  register,  in  order  that  such  delivery 
shall  constitute  a  record.  The  certificate  of  acknowledg- 
ment is  to  be  a  part  of  the  record.  It  is  not  sufficient 
that  the  register  is  informed  of  the  acknowledgment;  the 
object  of  recording  is  to  give  notice  to  others.  Until  this 
certificate  was  affixed,  the  fact  that  the  deed  was  ac- 
knowledged, and  in  the  register's  hands,  could  not  be 
noticed."  ^ 

'  Sigourney  v.  Lamed,  10  Pick.  72. 

*  Sigourney  v.  Larned,  supra.  Continuing,  the  court  said:  "By  the 
statute  (Stats.  1783,  c.  37,  §  4).  a  deed,  to  have  effect  against  any  but  the 
grantor  and  his  heirs,  and  to  entitle  it  to  be  recorded,  must  be  acknowl- 
edged by  such  grantor  before  a  justice  of  tlie  peace.  Here  Mr.  Ward  acted 
in  tlie  douijle  capacity  of  justice  of  the  peace  and  register  of  deeds.  He 
could  not  consider  the  deed  as  in  his  oflicial  custody  in  the  latter  capacity, 
until  he  had  done  his  office  in  taking  the  acknowledgment  of  the  grantor 


§§648,649  REGISTRATION    OF    DEEDS.  874 

§  G4:8.  Incapacity  to  take  acknowledgment. — Under 
the  statute  in  Missouri,  a  justice  of  the  peace  in  one 
county  has  no  power  to  take  and  certify  the  acknowledg- 
ment of  an  instrument  conveying  lands  in  another 
county.  If  an  acknowledgment  is  taken  by  such  an  offi- 
cer under  these  conditions,  the  acknowledgment  is  a  nul- 
lity, and  the  deed  imparts  no  notice,  although  it  may  have 
been  recorded.^  As  has  been  explained  in  a  previous 
section,  a  party  in  interest  is  disqualified  from  taking  an 
acknowledgment.  If,  however,  he  does  take  the  ac- 
knowledgment, and  the  instrument  shows  upon  its  face 
the  fact  that  he  is  interested,  its  registration  is  improper, 
and  does  not  impart  notice.  But  it  is  held  that,  when 
the  instrument  upon  its  face  does  not  disclose  this  fact, 
it  is  the  duty  of  the  register  to  receive  and  record  it. 
Under  this  state  of  facts,  it  will,  notwithstanding  there 
may  be  some  hidden  defect,  operate  as  notice.^ 

§  649.  Omission  of  name  of  grantee. — A  conveyaTice, 
although  it  has  been  recorded,  in  which  the  name  of  the 
grantee  is  omitted,  is  not  constructive  notice  to  subse- 

in  the  former,  which  must  necessarily  take  some  time.  The  exact  time 
when  the  certificate  was  made  does  not  distinctly  appear;  but  the  proba- 
bility is  that  it  was  not  done  till  the  next  morning.  But  we  do  not  decide 
the  case  upon  that  ground ;  had  the  magistrate  proceeded  instantly  to 
write  the  certificate  of  acknowledgment,  it  must  have  taken  some  time 
during  which  the  attachment  took  effect.  Where,  in  a  controverted  ques- 
tion of  property,  the  parties  stand  upon  equal  grounds  in  point  of  equity, 
the  l-3gal  title  shall  prevail;  and,  in  such  cases,  slight  circumstances  are 
sufficient  to  determine  that  priority  upon  which  we  think  the  preferable 
legal  title  depends.  Here  we  think  the  attachment  was  prior  in  time, 
and  tiie  maxim,  prior  in  tempore,  potior  injure,  must  decide  in  favor  of 
the  attaching  creditor." 

1  Bishop  V.  Schneider,  46  Mo.  472;  2  Am.  Kep.  533. 

*  Stevens  v.  Hampton,  46  Mis.  404.  A  court  of  equity  cannot  correct 
a  mistake  in  a  certificate  of  acknowledgment,  in  which  the  grantee  in- 
stead of  the  grantor  appeared  to  be  the  person  who  made  the  acknowl- 
edgment, so  as  to  make  the  record  of  the  deed  operative  from  the  begin- 
ning. It  is  impossible  in  such  a  case  to  determine  whether  the  mistake 
was  committed  in  writing  the  wrong  name  in  the  certificate,  or  in  taking 
the  acknowledgment  of  the  wrong  person :  Wood  v.  Cochrane,  39  Vt. 
544. 


875  REGISTRATION    OF    DEEDS.  §  650 

quent  purchasers.  As  an  illustration  of  this  rule,  a  case 
may  be  cited  where  the  name  of  the  mortgagee  was  left 
blank  in  a  mortgage,  and  the  court  said,  with  reference 
to  this  defect:  "  The  question  in  this  case  is  not  as  to 
whether  there  might  bean  implied  authority  between  the 
mortgagor  and  the  mortgagee  to  fill  up  the  blank  and 
make  the  instrument  complete.  The  question  is,  as  to 
the  effect  of  the  record  of  the  instrument  in  its  imperfect 
condition,  as  constructive  notice  to  a  subsequent  pur- 
chaser of  the  property.  It  has  been  frequently  held  that 
slight  omissions  in  the  acknowledgment  of  a  deed  destroy 
the  effect  of  the  record  as  constructive  notice.  A  fortiori, 
it  seems  to  us,  should  so  important  and  vital  an  omission 
as  that  of  the  name  of  the  grantee  have  that  effect."  ^ 

§  650.  Description  of  land. — As  the  object  of  the 
registry  acts  is  to  enable  purchasers  to  obtain  accurate 
information  respecting  the  ti'Je  to  any  particular  piece  of 
land,  it  is  essential  to  the  accomplishment  of  this  object 
that  the  description  of  the  land  in  the  conveyance  should 
be  reasonably  certain  and  sufficient  to  enable  subsequent 
purchasers  to  identify  the  premises  intended  to  be  con- 
veyed.'^    In  many  cases  the   description  is  so  inaccurate 

^  Disque  v.  Wright,  49  Iowa,  538,  540,  per  Day,  J.  The  court  cited  tho 
case  of  Chauncey  v.  Arnold,  24  N.  Y.  330,  as  being  in  point.  If  a  convey- 
ance is  recorded  without  the  signature  of  the  grantor,  though  it  may,  in 
fact,  have  been  sigiied,  and  the  omission  to  record  it  an  error,  yet  the 
record  in  such  a  case  is  not  constructive  notice :  Shepherd  v.  Burkhalter, 
13  Ga.  443;  58  Am.  Dec.  523.  If  the  transposition  of  the  name  of  the 
parties  is  apparent,  as  where  the  mortgagee's  name  is  by  mistake  writ- 
ten in  the  blank  for  the  mortgagor,  and  the  latter's  name  in  the  blank 
for  the  mortgagee,  but  it  is  signed  by  the  proper  party,  and  purports  to 
secure  a  debt  from  the  party  who  signs  to  the  other,  and  is  properly 
acknowledged  by  the  person  who  signs  it,  subsequent  purchasers  from 
the  mortgagor  by  its  record  are  charged  with  notice  of  the  mistake: 
Beaver  v.  Blanker,  94  111.  175.  The  record  of  a  conveyance  is  a  nullity, 
•where  the  certificate  of  acknowledgment  fails  to  state  that  the  officer  is 
personally  acquainted  with  the  party  a-jknowledging,  if  such  a  statement 
is  required  by  statute:  Kelsey  v.  Dunlap,  7  Oal.  KiO;  Peyton  t;. Peacock, 
1  Humph.  1:55.  See,  also,  Thurman  v.  Cameron,  24  Wend.  87;  Johnson 
V.  Walton,  1  Sneed,  258. 

*  Roflgers  v.  Kavanaugh,  24  111.  583;  Port  v.  Embree,  54  Iowa,  14; 
Burrows  v.  Baughman,  9  Mich.  213;  Eggleston  v.  Watson,  53  Miss.  339; 


§  651  REGISTRATION    OF    DEEDS.  876 

or  misleading  that  courts  liave  no  hesitancy  in  declaring 
it  insufficient  to  charge  purchasers  with  constructive 
notice.  In  others,  while  the  description  is  erroneous,  yet 
it  may  be  expressed  in  such  a  manner,  or  may  be  con- 
nected with  such  attendant  circumstances,  that  a  pur- 
chaser is  deemed  to  be  put  upon  inquiry,  and,  if  he  fails 
to  prosecute  this  inquiry,  he  is  chargeable  with  all  the 
notice  he  might  have  obtained  had  he  done  so.  We  call 
attention  in  the  following  sections  to  instances  in  which 
these  principles  have  been  applied. 

§  651.  Illustrations  of  description  insufficient  to  give 
constructive  notice. — The  description  in  a  deed  of  land 
was:  "Lying  as  follows,  viz.,  beginning  at  a  servisberry 
corner,  thence  north  to  white  oak,  thence  east  to  white 
oak,  thence  south  to  limestone  quarry,  thence  to  a  white 
oak;  all  these  trees  are  marked  for  the  purpose  of  run- 
ning off  the  above-described  land."  The  description 
omitted  all  reference  to  the  township,  county,  or  State  in 
which  the  land  was  situated.  The  court  conceded  that 
this  deed  and  an  actual  transfer  of  possession  would  pass 
a  good  title,  but  held  that  the  record  of  it  was  not  notice 
to  a  purchaser  at  a  judicial  sale,  nor  sufficient  to  put  him 
upon  inquiry.^  A  purchaser  is  not  charged  with  con- 
Wolfe  V.  Dyer,  95  Mo.  545 ;  Holloway  v.  Platner,  20  Iowa,  121 ;  89  Am. 
Dec.  517 ;  Nelson  v.  Wade,  31  Iowa,  49 ;  Green  v.  Witherspoon,  37  La. 
Ann.  751;  Wright  v.  Lancaster,  48  Tex.  250;  Murphy  v.  Hendricks,  57 
Ind.  593;  Adams  v.  Edgerton,  48  Ark.  419. 

'  Banks  v.  Ammon,  27  Pa.  St.  (3  Casey),  172.  The  opinion  of  the 
court  was  delivered  by  Knox,  J.,  who  on  this  point  said:  "The  rule  of 
caveat  emptor  applies  to  a  purchaser  at  a  judicial  sale,  but  he  is  not 
bound  to  see  what  is  not  to  be  seen.  He  is  protected  by  the  recording 
acts,  and  secret  defects  in  a  title  apparently  good,  are  for  him  no  defects 
at  all.  Notice  may  be  by  record,  by  possession,  or  it  may  be  given  di- 
rectly to  the  person  sought  to  be  charged  with  it,  either  by  writing  or 
verbally.  In  the  case  before  us,  at  the  time  of  the  Orphan's  Court  sale, 
the  possession  was  in  the  heirs  at  law  of  Joseph  Hutchison,  and  there 
was  no  proof  of  actual  notice  to  the  purchaser  that  Andrew  Banks  held 
a  life  estate  in  the  premises  sold.  Was  the  record  of  the  deed  of  14th 
August,  1832,  notice  of  the  estate  of  Banks?  We  think  not.  There  is 
nothing  in  the  descrijition  to  bring  home  notice  to  the  purchaser  of  the 
identity  of  the  land.     Neither  township,  county,  nor  State  is  given  for  its 


877  REGISTRATION    OF    DEEDS.  §  051 

structive  notice  of  a  mortgage,  describing  certain  lots 
upon  a  town  plat  which  had  not  been  recorded,  when  the 
lots  were  described  by  dii^erent  numbers  in  a  plat  recorded 
afterward,  and  the  mortgagee  was  not  in  possession  of  the 
premises.  A  party  is  not  put  upon  inquiry  by  the  absence 
of  a  town  plat  from  the  record  till  after  the  date  and  record 
of  a  conveyance  of  lots  contained  in  it,  so  as  to  charge  him 
with  a  knowledge  of  the  facts  that  it  was  possible  for  him  to 
ascertain  by  continuing  such  inquiry.^  Certain  property 
should  have  been  described  as  "lot  one  in  block  six."  It 
was,  however,  by  mistake,  described  in  the  deed  as  "lot 
and  six,"  a  part  of  the  words  of  the  correct  description 
being  omitted.  A  purchaser  at  a  judicial  sale,  it  was  h-eld, 
would  take  priority  over  a  senior  purchaser  holding  a  deed 
in  which  the  property  was  thus  inaccurately  described, 
unless  at  the  time  of  his  purchase  he  had  such  notice  as 
would  put  a  reasonably  prudent  man  upon  inquiry.^  A 
conveyance  of  "all  the  estate,  both  real  and  personal,"  to 
which  the  grantor  "is  entitled  in  law  or  inequity,  in  pos- 
session, remainder,  or  reversion,"  is  operative  as  a  trans- 
fer of  the  grantor's  whole  estate.     But  it  is  held  that  the 

locality;  nor  is  the  number  of  the  tract  or  the  amount  of  acres  men- 
tioned. No  boundaries,  courses,  or  distances  referred  to;  all  that  is  re- 
quired to  fill  the  description  is  to  find  one  servisberr)^  three  white  oaks, 
a  limestone  quarry,  with  the  trees  marked  in  some  manner.  One  about 
to  purchase  at  a  judicial  sale,  finding  such  a  deed  upon  record,  might 
Bafely  assume  that  it  did  not  apply  to  land  of  which  the  grantor  died 
seised." 

1  Stewart  v.  Huff,  19  Iowa,  557.  Said  Cole,  J:  "The  plaintiffs  might 
have  protected  themselves  perfectly,  and  secured  a  priority  for  their 
mortgage  by  causing  the  plat  of  Dyersville,  then  in  existence,  to  be  duly 
recorded.  Witliout  such  recorded  plat  there  was  one  link  wanting  in 
their  cliain  of  title  upon  the  record.  The  only  means  of  supplying  this 
defect  in  their  record  title  was  to  take  possession  of  the  property,  or  other- 
wine  bring  actual  or  constructive  notice  to  the  defendant,  of  the  existence 
of  the  missing  link.  There  is  no  finding  of  such  fact,  nor  could  the  mort- 
gage of  certain  lots  in  a  town  plat  not  upon  record  be  construed  into  a 
notice  of  a  claim  upon  other  lots  in  a  plat  afterward  made  and  recorded ; 
nor  can  the  absence  from  record  of  a  town  plat  till  after  the  date  and 
record  of  a  mortgage  of  lots  therein,  in  any  just  or  legal  sense  be  held  to 
put  a  party  upon  inquiry  so  as  to  charge  him  with  knowledge  of  facts 
within  the  possible  range  of  such  inquiry." 

*  Is'fclsun  V.  Wade,  21  Iowa,  49.     See  Jones  v.  Bamford,  21  Iowa,  217. 


§  651  REGISTRATION    OF    DEEDS.  878 

registry  of  a  deed  in  which  the  land  conveyed  is  described 
in  such  general  terms,  is  not  notice  in  law  to  a  subsequent 
purchaser  from  the  grantor  of  the  existence  of  the  deed; 
such  a  purchaser  is  not  affected  by  actual  notice  of  a 
deed  of  this  character,  and  of  its  contents,  unless  he  had 
notice  also  that  the  deed  embraced  the  land  purchased  by 
him.  It  is  also  held  that  the  proof  of  such  notice  must 
be  sufficient  to  affect  the  conscience  of  the  purchaser,  and 
not  merely  to  put  him  upon  inquiry.^  In  Minnesota, 
under  certain  provisions  of  the  statute,  a  mortgage  may 
be  foreclosed  by  "advertisement."  But  it  is  essential  to 
the  exercise  of  this  right  that  the  mortgage  shall  be  "duly 
recorded."^  Certain  premises  were  described  in  a  mort- 
gage as  the  "west  half  of  the  southeast  quarter  of  section 
14."  But  the  premises  were  described  in  the  registry  as 
the  "west  half  of  the  northeast  quarter  of  section  14." 
It  was  held  that  the  mortgage  was  not  "duly  recorded," 
on  account  of  the  error  in  the  record,  and  that  a  foreclo- 
sure of  the  same  could  not  be  had  by  advertisement.^  A 
mortcrage  was  executed  to  the  State  of  Indiana  for  a  loan 
of  school  funds.  The  premises  affected  were  described  by 
subdivisions,  but  the  county  and  State  in  which  they  were 
situated  were  not  named.  The  mortgagor  brought  an 
action  to  quiet  title  against  a  purchaser  at  a  sale  made  by 
the  county  auditor.  The  court  held  that  the  mortgage 
was  void  for  uncertainty  in  the  description  of  the  land, 
and  that  a  sale  by  the  auditor  was  consequently  a  nullity 
and  conveyed  no  title  to  the  purchaser.* 

^  Mundy  v.  Vawter,  3  Gratt.  518. 

*  Gen.  Stat.  Minn.,  c.  81,  §§  1,  2. 

'  Thorp  V.  Merrill,  21  Minn.  336.  And  see  Ross  v.  Worthington,  11 
Minn.  438,  443;  88  Am.  Dec.  95;  Morrison  v.  Mendenhall,  18  Minn.  232, 
236. 

*  Murphy  v.  Hendricks,  57  Ind.  593.  Said  Biddle,  0.  J.,  for  the  court : 
"  Tlie  vast  territory  lying  northwest  of  the  Ohio  River  was  surveyed  upon 
a  system  of  base  and  meridian  lines,  under  various  acts  of  Congress,  and 
this  congressional  survey  is  part  of  the  public  law  which  we  must  notice. 
Without  naming  the  State  or  county,  or  without  something  by  which  the 
State  and  county  could  be  ascertained,  the  description  of  the  land  in  this 
mortgage  would  be  just  as  applicable  to  the  same  township  and  range  in 
reference  to  any  other  base  and  meridian  line  in  the  several  States  north- 


879  REGISTRATION    OF   DEEDS.  §  652 

§  652.  Illustrations  where  purchaser  bound,  though 
description  inaccurate.  —  In  a  conveyance  filed  for  rec- 
ord, the  land  was  described  as  "the  south  half  of  the 
southeast  quarter  of  section  15,  town.  8  north,  range  43 
east,  of  the  fourth  principal  meridian."  The  correct  de- 
scription should  have  been  "  the  south  half  of  the  south- 
east quarter  of  section  15,  in  town.  43  north,  range  8 
east,  of  the  third  principal  meridian,"  the  numbers  of 
the  township  and  range  having  been  transposed,  and 
there  being  no  land  in  the  county  corresponding  to  the 
description  in  the  deed.  It  was  held,  however,  that  not- 
withstanding the  misdescription,  the  registry  laws  were 
applicable,  and  that  a  purchaser  was  put  upon  inquiry 
and  charged  with  knowledge  of  the  conveyance  of  the 
premises.^  The  owner  of  a  northeast  corner  of  a  lot  of 
land  sold  it,  but  in  the  deed  it  was  described  as  the  north, 
west  corner  of  the  lot,  which  was  the  property  of  another. 
The  grantee  subsequently  sold  the  land  to  third  persons 
in  payment  of  an  antecedent  debt,  but,  following  the  de- 
scription in  his  deed,  made  the  same  mistake  in  his  con- 
veyance to  the  second  grantees.  When  the  mistake  was 
discovered,  the  grantor  and  the  grantee  in  the  first  deed, 
for  the   purpose   of  correcting  the  error  in   the  former 

west  of  the  Ohio  River,  as  it  is  to  the  base  and  meridian  lines  by  which 
the  survey  of  the  lands  in  the  State  of  Indiana  were  [was]  made.  It  is 
impossible  to  ascertain,  therefore,  from  the  face  of  the  mortgage,  or  from 
anything  to  which  the  mortgage  refers,  in  what  State  or  county  the  land 
described  therein  lies.  As  the  mortgage  is  the  basis  of  title  in  the  ap- 
pellants, we  think  it  too  uncertain  to  uphold  their  claim.  In  addition 
to  the  case  cited,  which  we  regard  as  being  in  point,  the  following  au- 
thorities fully  support  the  same  principle:  Porter  v.  Byrne,  10  Ind.  146; 
71  Am.  Dec.  305;  The  Eel  River  Draining  Assn.  v.  Topp,  16  Ind,  242; 
Hunger  v.  Green,  20  Ind.  38;  Gano  v.  Aldridge,  27  Ind.  294;  Key  v.  Os- 
trander,  29  Ind.  1 ;  German  etc.  Ins.  Co.  v.  Grim,  32  Ind.  249 ;  2  Am. 
Rep.  341;  Harding  v.  Strong,  42  III.  148;  89  Am.  Dec.  415,  and  3  Wash. 
Real  Prop.  (4th  ed.),  pp.  384-412."  See,  also,  Cochran  v.  Utt,  42  Ind. 
267.  For  other  cases  involving  similar  questions  to  those  mentioned  in 
this  section,  the  reader  is  referred  to  Galway  v.  Malchow,  7  Neb.  285; 
Brothcrton  v.  Levingston,  3  Watts  &  S.  334;  Lally  v.  Holland,  1  Swan, 
396;  Martindale  v.  Price,  14  Ind.  115. 

'  Partridge  v.  Smith,  2  Bisa.  183.    See,  also,  Polk  v.  Chaison,  72  Tex, 
500. 


§  652  REGISTRATION  OF  DEEDS.  880 

deeds,  joined  in  a  deed  to  the  second  grantees,  of  the 
northeast  corner  of  the  lot,  its  correct  description.  It 
was  held  that  the  second  grantees  were  entitled  to  the 
land  in  equity  as  against  a  person  who  had  purchased  it, 
with  notice  of  the  error,  under  a  judgment  obtained 
against  the  original  grantor  after  the  execution  of  the 
first  deed,  but  before  the  second  deed  correcting  the  error 
was  made.^  A  lot  was  described  in  a  mortgage  by  the 
number  "eighteen,"  instead  of  its  correct  number  "eight." 
A  subsequent  mortgage  was  executed,  in  which  the  lot 
was  correctly  described,  but  the  second  mortgagee  had 
notice  of  the  mistake  in  the  first  mortgage.  It  was  held 
that  the  lien  of  the  first  mortgage  attached  to  lot  "eight," 
and  that  it  was  entitled  to  priority  over  the  subsequent 
mortgage.^  A  mortgage  was  executed  which  described 
the  land  affected  as  "beginning  two  hundreds  north  of 
the  southwest  quarter  of  section  number  34,"  but  omitted 
by  mistake  the  word  "rods,"  after  the  word  "hundreds." 
But  the  deed  by  which  the  mortgagor  held  the  land,  and 
which  was  recorded,  contained  a  correct  description  of 
the  land,  describing  it  as  beginning  two  hundred  rods 
from  the  same  corner  mentioned  in  the  mortgage.  A 
subsequent  mortgagee  had  knowledge  that  the  land  was 
occupied  by  the  mortgagor  as  his  homestead  for  a  long 
period  of  time.  It  was  held  tliat  the  record,  with  the 
other  facts,  charged  the  subsequent  mortgagee  with  notice 
of  the  prior  mortgage  and  of  the  land  intended  to  be 
affected.* 

'  Gouverneur  v.  Titus,  6  Paige,  347. 

2  Warburton  v.  Lauman,  2  Greene,  420,  424. 

3  Bent  i;.  Coleman,  89  111.  364 ;  7  Am.  Rep.  366.  Said  Mr.  Justice 
Breese :  "A  person  about  to  purchase  this  tract  of  land  would  naturally 
inquire  into  the  title  of  the  vendor ;  he  would  ascertain  his  source  of  title. 
This  is  the  ordinary  and  usually  the  first  inquiry.  By  turning  to  the 
records  he  would  discover  his  vendor  purchased  the  land  of  James 
Corunda,  and  received  a  deed  therefor  on  April  II,  1855,  in  which  the 
land  was  described  as  follows :  Commencing  two  hundred  rods  north  of 
the  southwest  corner,  etc.,  containing  forty  acres  of  land.  This  deed 
was  filed  for  record  on  April  13, 1855,  and  recorded  May  4, 1855,  and  thereby 
open  to  the  inspection  of  all  persons.  This  reference,  which  a  person  of 
the  most  ordinary  prudence  would  make,  would  have  satisfied  a  searcher 


881  REGISTRATION    OF    DEEDS.  §  653 

§  653.  Description  by  an  impossible  sectional  num- 
ber.— If  the  premises  are  described  by  an  impossible  sec- 
tional number,  the  record  of  the  deed,  it  follows  in  accord 
with  the  foregoing  decisions,  is  sufficient  to  put  a  pur- 
chaser from  the  same  grantor  upon  inquiry.  He  might, 
by  pursuing  such  inquiry,  obtain  actual  knowledge  of  the 
prior  deed.  "Let  it  be  granted,"  said  Mr.  Justice  Breese, 
"  that  it  was  inaccurately  recorded,  the  point  we  then 
make  is,  the  record  disclosed  the  fact  that  a  deed  for  a 

for  the  truth  that  there  was  a  mistake  in  the  description,  and  in  this 
case  the  more  especially,  as  all  the  mortgagees  holding  by  mortgages  sub- 
sequent, knew  the  land  mortgaged  was  the  homestead  of  their  grantor. 
It  was  a  well-improved  tract,  inclosed  by  a  growing  hedge,  with  a  com- 
fortable dwelling  and  other  structures  of  a  permanent  and  valuable  char- 
acter. The  mortgagor  occupied  it  from  the  time  of  his  purchase  from 
Corunda  to  the  date  of  the  last  mortgage,  something  like  twenty  years. 
Appellant  was  familiar  with  the  place,  being  a  frequent  visitor  there, 
and  knew  when  she  took  her  mortgage  it  was  his  home  place,  and  the 
record  would  have  told  her  it  was  the  forty  acres  he  purchased  of  James 
Corunda."  A  court  of  equity  may  reform  a  mortgage  which  omits  a 
parcel  of  land  which  the  parties  intend  to  include,  and  the  parcel 
omitted  will  be  free  from  a  judgment  lien  created  after  the  execution  of 
the  mortgage:  White  v.  Wilson,  6  Blackf.  448;  39  Am.  Dec.  437.  A 
conveyance  described  the  land  as  "lot  four  of  block  one  of  the  La  Fon- 
taine farm  lying  south  of  the  river  road,  and  fronting  on  Detroit  river, 
being  now  used  and  occupied  with  the  steam  sawmill  thereon,  by  the  par- 
ties of  the  first  part."  It  appeared,  however,  that  that  portion  of  the  La 
Fontaine  farm  had  been  platted  into  four  lots  or  blocks,  which  had 
not  been  subdivided ;  the  mill  was  situated  on  the  one  numbered  four 
on  the  plat;  the  others  were  fenced  in  and  occupied  with  the  mill. 
The  court  held  that  the  words  "of  block  one,"  of  the  above  description, 
should  be  rejected,  and  that  when  the  error  in  a  conveyance  is  apparent, 
the  record  is  notice  to  subsequent  purchasers :  Anderson  v.  Baughman,  7 
Mich.  G'J;  74  Am.  Dec.  699.  SeeTousley  v.  Tousley,  5  Ohio  St.  78.  A  sub- 
sequent judgment  lien  is  not  entitled  to  priority  because  there  has  been  an 
error  in  the  description  of  a  prior  deed  or  mortgage :  Welton  v.  Tizzard,  15 
Iowa,  495;  Gillespie  v.  Moon,  2  Johns.  Ch.  585;  7  Am.  Dec.  559;  Sevarts 
V,  Stees,  2  Kan.  236.  For  various  instances  on  which  omissions  and  in- 
accuracies in  the  description  have  been  held  immaterial,  and  not  to 
affect  the  validity  of  a  conveyance,  because  the  land  was  sufficiently  de- 
scribed to  enable  it  to  be  identified,  see  Thornhill  v.  Burthe,  29  La.  Ann. 
639;  Consolidated  Ass^ociatcd  Planters  v.  Mason,  24  La.  Ann.  518;  Ellis 
V.  Sims,  2  La.  Ann.  251;  Boon  v.  Pierpont,  28  N.  J.  Eq.  7;  Slater  v. 
Breese,  36  Mich.  77;  Shepard  v.  Shepard,  36  Mich.  173;  Baker  v.  Bank, 
2  La.  Ann.  371 ;  Bank  v.  Barrows,  21  La.  Ann.  396;  Marcotte  v.  Coco,  12 
Kob.  (La.)  167  ;  Bank  v.  Denham,  7  Rob.  (La.)  39. 
Deeds,  Vol.  11. —is 


§  654  REGISTRATION    OF   DEEDS.  882 

tract  of  land  with  an  impossible  sectional  number,  in 
township  thirty-four  north,  range  three  east,  of  the  third 
principal  meridian,  was  recorded,  the  names  of  the  par- 
ties thereto  distinctly  appearing.  Now,  a  party  dealing 
with  the  grantor  in  such  a  deed  would  have  his  attention 
arrested  by  this  singular  description,  and  he  would  natu- 
rally be  led  to  inquiry.  The  record  afforded  him  abun- 
dant data,  which,  properly  used  and  diligently  inquired 
into,  would  inevitably  lead  him  to  the  fact  of  the  exist- 
ence of  the  deed."* 

§  654.  Distinction  between  description  in  deed  and 
mortg-agre. — In  Connecticut,  it  was  intimated  that  a  dis- 
tinction exists  between  the  sufficiency  of  a  description  of 
land  in  a  deed  and  that  of  land  in  a  mortgage.  In  the 
case  in  which  this  suggestion  was  made  there  were  several 
mortgagors,  and  some  of  the  parcels  of  land  belonged  to 
one  of  the  signers,  and  some  were  the  property  of  others 
The  mortgage  described  the  land  conveyed  as  "  four  cer- 
tain farms  situated  in  the  town  of  Canaan,  and  bounded 
and  described  as  follows,"  the  farms  being  then  separately 
described,  and  the  description  concluding  in  this  language: 
"  Also  all  such  other  lands  as  we,  the  grantors,  or  either 
of  us,  own  or  have  any  interest  in,  situate  in  said  town  of 
Canaan;  reference  being  at  all  times  had  to  the  land 
records  of  said  Canaan,  and  to  the  probate  records  for 
the  district  of  Sharon,  for  more  particular  description  of 
the  same."  There  was  another  piece  of  land  belonging 
to  one  of  the  grantors  not  adjacent  to  or  connected  with 
the  farms  described  in  the  conveyance.  On  a  bill  to  fore- 
close the  mortgage,  it  was  held  by  a  majority  of  the  court, 
the  court  standing  three  to  two,  that  this  last-mentioned 
piece  was  not  conveyed  by  the  mortgage.^  Mr.  Justice 
Pardee,  who  spoke  for  the  majority  of  the  court,  said: 
"Whatever  might  be  held  with  regard  to  the  sufficiency 
of  such  a  description  in  an  ordinary  deed  intended  merely 

»  Merrick  v.  Wallace,  19  111.  486,  498. 
*  Herman  v.  Deming,  44  Conn.  124. 


883  REGISTRATION    OF    DEEDS.  §  654 

to  convey  title,  "yet  we  think  such  a  description  clearly  in- 
sufficient in  the  case  of  a  mortgage.  It  is  a  fixed  prin- 
ciple of  our  law  that  mortgage  deeds  should  give  subsequent 
creditors  of  the  mortgagor  definite  information  as  to  the 
debt  due  to  the  mortgagee,  and  as  to  the  particular  prop- 
erty pledged  for  its  payment.  It  is  only  by  knowing  what 
the  property  is  that  they  can  learn  its  value,  and  it  is  as 
important  to  them  to  know  its  value  as  to  know  the 
amount  of  the  debt  for  which  it  is  mortgaged;  and  they 
are  entitled  to  the  law  of  registration  in  obtaining  this 
information.  To  be  told  that  the  mortgage  covers  all  the 
real  estate  which  the  grantor  owns  in  the  town  of  Hart- 
ford, is  to  impose  upon  them  the  examination  of  many 
thousand  pages  of  records;  for  it  is  to  be  borne  in  mind 
that  the  grantor  himself  may  have  received  his  titles  by 
the  same  general  description,  and  from  many  different 
grantors.  The  recognition  by  the  courts  of  such  a  mort- 
gage as  valid  would  be  equivalent  to  the  abrogation  of 
the  recording  system,  so  far  as  mortgages  are  concerned. 
It  is  not  unreasonable  to  require  of  the  mortgagee  that 
his  deed  should  mention  a  name,  or  a  locality,  or  point  to 
a  monument,  or  a  particular  deed,  or  refer  to  some  book 
or  page.  It  would  be  only  his  proper  contribution  to  the 
upholding  of  a  system  which  confers  great  benefits  upon 
the  public.  We  are  of  opinion,  therefore,  that  the  general 
description  in  this  mortgage  was  not  sufficient  to  convey 
the  interest  of  Mrs.  Scott,  the  owner,  to  the  mortgagees. 
We  are  not  prepared  to  say  that  we  should  apply  the  same 
rule  without  qualification,  to  a  deed  that  was  intended 
only  as  a  conveyance  of  title.  The  policy  of  our  law  with 
regard  to  the  definite  information  to  be  given  to  creditors 
and  purchasers  by  mortgages,  does  not  apply  to  ordinary 
conveyances.  Here,  however,  comes  in  the  policy  of  the 
law  with  regard  to  records  of  titles,  which  is  applicable  to 
all  recorded  conveyances,  whether  by  absolute  deed  or 
mortgage."  ^ 

^  Herman  V.  Deming,  stipm.    Continuing,  the  justice  said :  "In  North 
V.  Belden,  13  Conn.  380,  35  Am.  Dec.  83,  this  court  t-aid :  'It  has  never 


§  655  REGISTRATION    OF    DEEDS.  884 

§  655.  Comments. — We  have  not  been  able  to  find 
any  other  decision  in  any  other  State  where  this  precise 
question  has  arisen.  But  we  doubt  that  any  valid  ground 
exists  for  the  distinction  sought  to  be  made.  Certainly  a 
correct  description  of  the  land  affected  would  seem  to  be 

been  the  policy  of  our  law  that  the  title  to  real  estate  should  appear 
upon  record,  that  it  might  be  easily  and  accurately  traced.  This  policy 
has  added  greatly  to  the  security  of  our  land  titles,  and  has  prevented 
much  litigation  which  would  otherwise  have  arisen.'  And  Swift  in  his 
Digest,  vol.  1,  p.  122,  lays  it  down  that  '  it  is  essential  that  the  land  to 
be  conveyed  should  be  so  located,  butted,  bounded,  and  described  in  the 
deed,  as  that  it  can  be  known  where  it  lies,  and  be  distinguished  from 
any  other  tract  of  land,  or  there  must  be  such  reference  to  some  known 
and  certain  description  as  will  reduce  the  matter  to  certainty.'  If  we 
were  to  give  judicial  sanction  to  this  form  of  conveyance,  we  should 
practically  put  an  end  to  the  recording  system.  If  we  say  that  such 
general  language,  following  as  here  a  particular  description,  does  more 
than  strengthen  and  secure  what  has  gone  before  it,  that  it  is  sufficiently 
descriptive  to  support  a  distinct  and  independent  grant  of  additional 
estate,  and  that  it  meets  the  requirements  of  that  system,  we  should 
establish  a  precedent  upon  which  grantees  would  hereafter  rely,  and 
from  which  the  court  would  find  it  difficult  to  recede.  After  a  succes- 
sion of  such  conveyances,  land  records  would  cease  to  furnish  any  in- 
formation ;  the  same  confusion  would  result  as  would  come  from  the 
removal  of  all  fences,  mere-stones,  and  other  monuments,  which  indicate 
the  location  of  separating  lines.  The  rule  of  law  which  declares  that  to 
be  certain  which  can  be  made  certain  is  not  complied  with  in  such  a 
deed.  The  rule  demands  a  reference  and  pointing  to  particular  docu- 
ments or  records.  If  we  say  that  such  a  reference  is  sufficiently  explicit 
for  the  town  of  Canaan,  and  the  probate  district  of  Sharon,  we  say  that 
it  is  proper  for  the  town  and  probate  district  of  Hartford,  with  its  fifty 
thousand  pages  of  records.  A  search  through  and  an  examination  of 
these  does  not  come  within  any  reasonable  interj^retation  of  the  rule. 
We  are  aware  that  courts  have  confirmed  grants  made  in  this  general 
form;  for  instance,  in  1814,  in  Jackson  v.  De  Lancey,  11  Johns.  365,  the 
court  subjected  to  the  operation  of  a  deed  made  in  1770,  a  tract  of  land 
which  was  not  otherwise  described  therein  than  in  the  following  clause : 
'And  all  other  lands,  tenements,  and  hereditaments  belonging  to  said 
William  Alexander,  Earl  of  Stirling,  within  the  province  of  New  York.' 
This  was  made  to  rest  upon  the  principle  that  grantors  and  grantees  may 
make  and  take  such  conveyances  as  are  satisfactory  to  themselves ;  and 
the  principle  is  doubtless  deduced  from  English  decisions  made  without 
reference  to  any  system  of  recording  the  transfer  of  title  to  real  estate, 
made  in  cases  where  there  was  an  actual  delivery  of  possession  by  the 
gi-antor  to  the  grantee  in  the  presence  of  freeholders  of  the  county.  This 
gave  actual  notice  to  the  public,  and  stood  in  the  place  of  constructive 
notice  by  a  record ;  the  open,  corporeal  investiture  upon  the  land  itself. 


885  REGISTRATION    OF    DEEDS.  §  656 

as  essential  in  one  case  as  in  the  other,  and  whenever 
language  is  used  which  is  sufficient  to  show  the  intention 
of  the  parties,  it  should  receive  the  same  construction, 
whether  tlie  land  to  which  it  is  a^^plied  is  conveyed  by  an 
absolute  deed  or  is  mortgaged. 

656.     Instruments  not  entitled   to   reg-istration. — The 

registr}'  acts  authorize  the  recording  of  certain  specified 
instruments,  and  their  registration  operates  as  notice. 
But  the  fact  that  an  instrument  is  recorded  is  not  suffi- 
cient to  raise  the  presumption  of  notice,  unless  it  be  an 
instrument  whose  registration  is  authorized  by  statute. 
Otherwise  the  voluntary  recording  of  it  would  be  a  nullity. 
The  law  on  this  subject  is  aptly  stated  by  Mr.  Justice 
Flandrau:  "It  is  competent  for  the  government  to  pre- 
scribe rules  for  the  conveyance  of  lands  within  its  juris- 
diction, whether  by  deed,  will,  or  otherwise,  and  it  can 
impose  such  restrictions  as  are  deemed  for  the  best  inter- 
ests of  its  subjects.  It  may  provide  that  the  title  to  lands 
shall  not  pass  unless  the  deed  or  will  is  upon  paper, 
stamped  by  the  State.  It  may  declare  that  the  instru- 
ment shall  be  attested  by  one,  two,  or  more  witnesses; 
and  iKuie  of  these  requirements  involve  a  greater  exercise 
of  authority  than  to  say  that  the  conveyance  shall  be  in 
writing,  as  there  is  no  reason  except  the  statutes  why  a 
man  should  not  pass  his  real  as  well  as  his  personal  estate 
by  parol  merely.     That  statutes  requiring  certain  solem- 

was  equivalent  to  a  record  of  specific  boundaries.  And  the  principle  ia 
not  of  universal  application ;  as  a  matter  of  fact  the  law  does  put  some 
limitations  upon  the  freedom  of  grantors  and  grantees  in  the  matter  of 
transferring  the  title  to  real  estate;  for  instance,  there  must  be  two  wit- 
nesses to  the  signature  of  the  grantor;  he  must  acknowledge  that  it  is 
his  free  act  or  deed  before  a  magistrate,  and  the  magistrate  must  certify 
to  this  fact.  Tliese  may  be  considered  as  invasions  of  the  absolute  right 
of  the  owner  to  make  the  conveyance  in  a  form  satisfactory  to  himself. 
But  as  it  is  not  necessary  to  the  disposition  of  the  case  that  we  decide 
this  point,  we  leave  it  open  for  future  consideration,  if  any  case  shall 
arise  that  shall  call  for  a  decision  of  it.  We  are  of  the  opinion  that  the 
mortgage  in  question  did  not  convey  to  the  petitioners  any  title  to  or 
interest  in  the  lot  of  land  belonging  to  Mrs.  Scott,  and  that  there  is  error 
in  the  judgment  complained  of." 


§  656  REGISTRATION    OF    DEEDS.  886 

nities  to  attend  the  execution  of  conveyances  are  impera- 
tive, and  must  be  complied  with  to  give  validity  to  them,  is 
illustrated  by  the  action  of  courts  in  annulling  wills  and 
conveyances  of  land  frequently  for  the  want  of  a  seal  or 
other  essential  formality.  That  our  legislature  has  always 
considered  a  departure  from  the  statute  forms  as  invalid- 
atino-  conveyances,  is  found  in  the  fact  that  a  series  of 
acts  have  been  passed,  year  after  year,  to  save  such  as  are 
defectively  executed,  while  the  same  legislatures  have 
steadily  adhered  to  the  forms  first  prescribed,  and  even 
added  greater  restrictions.  When  a  party  desires  to  pur- 
chase or  take  an  encumbrance  upon  land,  his  guide  as  to 
the  title  is  the  records  of  the  county,  and  it  is  a  well-set- 
tled rale  that  the  record  of  a  deed  is  notice  only  of  its 
contents  so  far  as  the  record  discloses  it.  If  the  record 
contain  any  instrument  which  is  not  authorized  to  be  re- 
corded, either  from  the  nature  of  its  subject  matter,  or  a 
defect  in  its  execution,  it  is  a  mere  nullity,  and  is  not 
notice  for  any  purpose."' 

1  In  Parret  v.  Shaubhut,  5  Minn.  323,  328;  80  Am.  Dec.  424;  Burn- 
ham  V.  Chandler,  15  Tex.  441 ;  Commonwealth  v.  Rhodes,  6  Mon.  B.  171, 
181;  Moore  v.  Hunter,  6  111.  (1  Gilm.)  317;  Bossard  v.  White,  9  Rich. 
Eq.  483;  Reed  v.  Coale,  4  Ind.  283;  Brown  v.  Budd,  2  Cart.  442;  Lewis 
V.  Baird,  3  McLean,  56;  Galpin  v.  Abbott,  6  Mich.  17;  Mott  v.  Clark,  9 
Barr.  400;  49  Am.  Dec.  566;  Graves  v.  Graves,  7  Gray,  391;  Pringle  v. 
Dunn,  37  Wis.  449;  19  Am.  Rep.  772;  Ludlow  t;.  Van  Ness,  8  Bosw.  178; 
Villard  v.  Robert,  1  Strob.  Eq.  393;  Monroe  v.  Hamilton,  60  Ala.  227. 
In  Moore  v.  Hunter,  supra,  it  is  said :  "The  United  States  are  the  owners 
of  all  the  vacant  lands  in  this  State,  and  until  they  have  sold  and  re- 
ceived the  price  stipulated  to  be  paid  for  any  particular  tract  of  land 
belonging  to  them,  the  recording  acts  of  this  State  have  no  application. 
A  contrary  doctrine  would  lead  to  great  injustice.  Until  the  United 
St.'ites  have  parted  with  their  title  to  the  public  lands,  no  purchaser 
would  think  of  seeking  for  equities  or  encumbrances,  affecting  the  title, 
in  any  other  place  than  those  offices  where  the  lands  were  subject  to 
entry  or  sale.  When  Dunnegan  executed  the  deed  to  Bates,  only  part 
of  the  consideration  for  the  land  had  been  paid,  and  whether  the  land 
might  not  revert  to  the  United  States  was  altogether  uncertain.  To 
record  the  deed  of  Dunnegan  was  a  useless  act,  not  required  by  lew, 
and  the  record,  consequently,  was  not  notice  to  any  one."  See,  also, 
Keech  «;.  Euriquez,  28  Fla.  597;  McCroskey  t;.  Ladd  (Cal.),  28  Vt.  216. 
That  a  deed  not  legally  entitled  to  record  does  not  constitute  notice,  see 
White  V.  Magarahan,  87  Ga.  217. 


887  REGISTRATION    OF    DEEDS.  §  657 

§  657.  Illustrations. — One  partner  conveyed  to  his 
copartner  his  entire  interest  in  the  partnership  property 
as  security  for  a  debt.  It  was  held  that  the  registration 
of  the  mortgage  would  operate  as  constructive  notice  as 
against  subsequent  creditors  and  purchasers  of  the  lien 
created  on  the  interest  of  the  mortgagor  in  the  property. 
But  the  court  held  that  it  could  not  have  this  effect,  so  far 
as  any  restraint  or  limitation  was  imposed  by  it  on  the 
authority  of  the  mortgagor  as  a  partner.^  "This  princi- 
ple of  constructive  notice  from  registration  is  confined  to 
instruments  which  the  statute  authorizes  to  be  registered. 
It  cannot  be  extended  to  any  and  every  instrument  which 
parties  may  think  proper  to  register.  There  must  be  a 
statute  authorizing  the  registration,  or  mere  registration 
will  not  operate  as  notice.^  Nor  will  registration  operate 
as  constructive  notice  of  any  and  every  provision  which 
may  be  introduced  into  an  instrument,  of  which  it  is  re- 
quired. A  conve3^ance  of  personal  property  may  include 
a  transfer  of  choses  in  action,  and  while  operating  as  con- 
structive notice  of  the  transfer  of  the  particular  personal 
property  described,  it  would  not  operate  as  a  notice  of 
the  transfer  of  the  choses  in  action.^  The  reason  is 
obvious:  the  law  does  not  authorize  the  registration  of 
transfers  of  choses  in  action,  and,  therefore,  does  not  cast 
on  those  dealing  with  him  who  has  the  possession  and 
the  apparent  legal  title,  the  duty  to  ascertain  whether 
there  has  been  an  assignment  of  them.  We  have  no 
statute  (except  as  to  limited  partnerships)  which  author- 
izes the  registration  of  articles  of  partnership,  or  of  limi- 
tations or  restraints  which  by  agreement  may  be  placed 
on  the  power  and  authority  of  a  partner.  While,  so  far 
as  tlie  mortgage  is  a  conveyance  of  Hamilton's  undivided 
share  of  the  joint  crops,  its  registration  is  constructive 
notice  thereof;  so  far  as  it  is  a  restraint  or  limitation  of 

»  Monroe  v.  Hamilton,  60  Ala.  227. 

>  Citing  Mitchell  v.  Mitchell,  3  Stewt.  &  P.  81;  Dufphey  v.  Freenaye, 
5  Stewt.  &  P.  215;  Baker  v.  Washington,  5  Stewt.  &  P.  1-12;  Tatum  v. 
Young,  1  Port.  298. 

»  Citing  McCain  y.Wood,  4  Ala.  258;  Stewart  v.  Kirkland,  19  Ala.  1G2. 


§  G58  REGISTRATION    OP    DEEDS.  888 

his  authority  as  partner,  the  registration  is  not  construct- 
ive notice."^  Where  both  real  and  personal  estate  are 
conveyed  by  the  same  deed,  the  registrj'-  of  the  deed  is  not 
of  itself  constructive  notice  of  the  assignment  of  the  per- 
sonal estate.^  A  recital  in  a  deed  is  evidence  that  the 
purchaser  had  notice  of  the  fact  recited.  But  this  is  true 
only  so  far  as  it  concerns  the  title  to  the  land  purchased. 
The  recital  will  not  affect  him  with  notice  in  regard  to  the 
title  of  any  other  land  than  that  conveyed  by  the  deed.^  A 
deed  of  assignment  when  not  authorized  to  be  recorded 
does  not  impart  notice  because  it  is  recorded/  Subse- 
quent purchasers  are  not  charged  with  constructive  notice 
of  the  facts  appearing  from  the  entry  of  lands  sold  by  the 
United  States,  upon  the  land-book  in  the  county  clerk's 
office,  as  such  entry  is  required  only  for  the  purposes  of 
taxation.^  The  registration  of  executory  agreements  for 
the  sale  of  real  property,  if  not  authorized  by  statute,  does 
not  impart  notice.^  If  the  statute  does  not  authorize  the 
registration  of  a  certified  copy  of  a  record  of  a  deed,  such 
registration  is  a  nullity .'^ 

§  658.  Want  of  delivery. — If  a  conveyance  has  not 
been  delivered,  the  fact  that  it  is  registered  does  not  cause 

*  Per  Brickell,  C.  J.,  in  Monroe  v.  Hamilton,  60  Ala.  227. 

*  Pitcher  v.  Barrows,  17  Pick.  361;  28  Am.  Dec.  306.  Said  Shaw, 
C.J:  "But  we  think  this  is  not  constructive  notice,  any  further  than 
the  statute  has  made  it  so,  to  wit,  of  the  transfer  of  real  estate  The 
fact  that  the  assignment  of  the  personal  estate  was  in  the  same  deed 
with  the  real,  was  merely  accidental.  If  the  plaintiff  had  had  occasion 
to  take  a  deed  of  Walcott,  of  real  estate,  the  registry  would  have  been 
conclusive  evidence  of  constructive  notice,  whether  in  fact  he  examined 
the  registry  or  not.  But  if  he  had  no  occasion  to  take  a  conveyance  of 
real  estate,  he  had  no  occasion  to  examine  the  registry,  and  the  law  does 
not  presume  that  he  did  do  it.  As  to  that  part  of  its  contents  relating 
to  personal  estate,  there  is  no  legal  presumption  that  its  contents  were 
known  to  the  plaintiff." 

*  Boggs  V.  Varner,  6  Watts  &  S.  469. 

*  Burnham  v.  Chandler,  15  Tex.  441. 

*  Betser  v.  Rankin,  77  111.  289. 

«  Mesick  v.  Sunderland,  6  Cal.  297. 

^  Lund  V.  Ptice,  9  Minn.  230;  Stevens  v.  Brown,  3  Vt.  420;  23  Am. 
Dec.  215;  Pollard  v.  Lively,  2  Gratt.  216;  Lewis  v.  Baird,  3  McLean,  56; 
Oatman  v.  Fowler,  43  Vt.  462. 


889  REGISTRATION    OP    DEEDS.  §  G59 

it  to  prevail  over  a  conveyance  subsequently  made,  or  a 
lien  subsequently  acquired.  Thus,  a  judgment  against  a 
mortgagor  was  given  tlie  preference  over  a  mortgage 
which  was,  in  the  absence  and  without  the  knowledge  of 
the  mortgagee,  delivered  by  the  mortgagor  to  the  recorder 
of  the  proper  county  to  be  recorded,  where  the  judgment 
was  obtained  before  the  mortgagee  had  assented  to  the 
mortgage.^  Where  a  deed  has  been  unconditionally  de- 
livered to  the  grantee,  irrespective  of  the  question  whether 
the  consideration  has  been  paid  or  secured,  the  deed  may 
be  recorded  without  the  grantor's  consent.^  This  princi- 
ple relates  more  to  the  validity  of  the  instrument  than  it 
does  to  the  effect  of  the  record.  The  instrument  is  not 
operative  until  delivery.  "A  deed  takes  effect  by  delivery. 
An  execution  and  registration  of  a  deed,  and  a  delivery 
of  it  to  the  register  for  that  purpose,  do  not  vest  the  title 
in  the  grantee.  Nothing  passes  by  it."^  This  topic  has 
been  fully  discussed  in  tlie  chapter  on  delivery.'' 

§  659.  Equitable  mortgagres. — At  one  time  it  was  con- 
sidered that  a  mortgage  of  an  equity  was  not  within  the 
purview  of  the  registry  acts,  and  hence  that  the  registra- 
tion of  such  a  mortgage  was  not  constructive  notice.^ 
But  it  is  now  established  that  the  policy  of  these  statutes 
requires  all  liens  and  encumbrances,  whether  legal  or 
equitable,  affecting  the  title  to  real  estate,  to  be  recorded, 
and  therefore,  as  a  general  proposition,  a  mortgage  of  an 
equitable  interest  in  land,  taken  without  notice,  is,  if  first 
recorded,  preferred  to  any  conveyance  of,  or  encumbrance 

»  Goodsell  V.  Stinson,  7  Blackf.  437.  See,  also,  Fitzgerald  v.  Goff,  99 
Ind.  28 ;  Weber  v.  Christen,  121  111.  91 ;  2  Am.  St.  Kep.  68 ;  Parker  v.  Hill, 
8  Met.  447;  Owings  v.  Tucker,  90  Ky.  297;  Hoadley  v.  Hadley,  48  Ind. 
452;  Goodwin  v.  Owen,  55  Ind.  243;  Maynard  v.  Maynard,  10  Mass.  4oG; 
6  Am.  Dec.  140;  Woodbury  v.  Fisher,  20  Ind.  387;  83  Am.  Dec.  325; 
Honry  v.  Carson,  96  Ind.  412;  Fitzgerald  v.  Goff,  99  Ind.  28  ;  Freeman  v. 
Pe  ly,  23  Ark.  449;  Ward  v.  Small,  90  Ky.  198. 

^  Konan  v.  Meyer,  84  Ind.  390. 

'  Samson  v.  Thornton,  3  Met.  275,  281 ;  27  Am.  Dec.  135. 

*  See  §§  290-293.  See,  also,  Woodljury  v.  Fisher,  20  Ind.  387;  83  Am. 
Dec.  32r.;   Hedge  v.  Drew,  12  Pick.  141 ;  22  Am.  Dec.  416. 

'  Boawell  v.  liuchanan,  3  Leigh,  o6o;  23  Am.  Dec.  280. 


§  GGO  KEGISTRATION    OP    DEEDS.  890 

upon,  such  land.'  It  is  held  that  a  person  in  possession 
of  land  under  a  parol  contract  of  sale  may  mortgage  his 
interest,  and  although  the  mortgagor  may  not  have  ac- 
quired the  absolute  fee,  such  mortgage  is  entitled  to  reg- 
istration, and  if  recorded,  is  notice  to  subsequent  pur- 
chasers and  encumbrancers.^  But  it  is  held  in  Illinois, 
where  one  has  only  an  equitable  title  derived  from  a  bond 
for  a  deed  which  is  not  recorded,  that  the  record  of  a 
mortgage  given  by  him  is  not  notice  to  a  subsequent  pur- 
chaser of  the  legal  title  from  one  in  possession  of  the 
land.  The  title  of  a  purchaser  of  this  description  is  not 
derived  through  the  title  of  the  mortgagor.  Hence,  he 
will  not  take,  it  is  held,  subject  to  the  mortgage,  notwith- 
standing the  fact  that  it  is  recorded.' 

§  660.  Assignment  of  nioi-tg-age. — Under  some  of  the 
early  statutes,  it  was  held  that  an  assignment  of  a  mort- 
gage was  not  entitled  to  registration.  Thus,  in  Indiana, 
before  the  passage  of  the  statute  allowing  the  registration 
of  the  assignments  of  mortgages,  it  was  held  that  record- 
ing them  did  not  give  notice.*  But  in  that  State,  a  stat- 
ute now  exists  which  permits  the  registration  of  such 
assignments.^  And,  generally,  at  the  present  day,  either 
by  the  express  provision  of  a  statute,  or  by  judicial  con- 
struction of  the  registry  acts,  assignments  of  mortgages 
are  considered  as  instruments  entitled   to  registration." 

^  Parkist  v.  Alexander,  1  Johns.  Ch.  394;  Jarvis  v.  Dutcher,  16  Wis. 
307;  General  Ins.  Co.  v.  United  States  Ins.  Co.,  10  Md.  517;  69  Am.  Dec. 
174 ;  Crane  v.  Turner,  7  Hun,  357 ;  Boyce  v.  Shiver,  3  S.  C.  515. 

2  Crane  v.  Turner,  7  Hun,  357. 

^  Irish  •;;.  Sharp,  89  111.  261.  See  Halsteads  v.  Bank  of  Kentucky,  4 
Marsh.  J.  J.  554;  Bank  of  Greensboro  v.  Clapp,  76  N.  Y.  482. 

*  Hasleman  v.  McKernan,  50  Ind.  441 ;  Dixon  v.  Hunter,  57  Ind.  278. 
"  Acts  of  1877,  Ind.  c.  58;  §  1. 

*  Bank  of  Indiana  v.  Anderson,  14  Iowa,  544;  83  Am.  Dec.  390;  Bow- 
ling V.  Cook,  39  Iowa,  200;  Tradesman's  etc.  Assn.  v.  Thompson,  31  N.  J. 
Eq.  536;  Stein  v.  Sullivan,  31  N.  J.  Eq.  409;  Fort  v.  Burch,  5  Denio,  187; 
James  v.  Morey,  2  Cow.  246 ;  14  Am.  Dec.  475 ;  Belden  v.  Meeker,  47  N.  Y. 
307;  Turpin  v.  Ogie,  4  Bradw.  (111.)  611;  Smith  v.  Keohane,  6  Bradw. 
(111.)  585;  Cornog  v.  Fuller,  30  Iowa,  212;  McClure  v.  Burris,  16  Iowa, 
591 ;  Vanderkemp  v.  Shelton,  11  Paige,  28 ;  Campbell  v.  Vedder,  1  Abb. 


891  REGISTRATION    OF    DEEDS.  §  6G0 

But  the  mortgagor  himself  is  not  bound  by  the  registra- 
tion of  the  assignment  of  the  mortgage.  He  should  have 
actual  notice  to  prevent  him  from  claiming  the  benefit  of 
payments  made  to  the  mortgagee.*  This  principle  has 
been  expressly  declared  by  statutes  in  several  States. 
Thus,  selecting  California  as  an  instance,  it  is  provided 
by  the  code:  "When  the  mortgage  is  executed  as  security 
for  money  due,  or  to  become  due,  on  a  promissory  note, 
bond,  or  other  instrument,  designated  in  the  mortgage, 
the  record  of  the  assignment  of  the  mortgage  is  not,  of 
itself,  notice  to  a  mortgagor,  his  heirs,  or  personal  repre- 
sentatives, so  as  to  invalidate  any  payment  made  by 
them,  or  either  of  them,  to  the  person  holding  such  note, 
bond,  or  other  instrument."^  But  the  mortoafror  is  en- 
titled  to  this  protection  only  when  he  makes  a  payment. 
If  the  mortgagee  release  the  mortgage  without  the  pay- 
ment of  any  consideration,  the  release  is  inoperative 
against  the  assignee  of  the  mortgage,  who  has  his  assign- 
ment recorded.^  The  mortgagor  is  not  entitled  to  this 
protection  of  making  a  payment  to  the  mortgagee,  when 
the  mortgage  is  given  as  security  for  the  payment  of  a 
negotiable  note,  and  this  has  been  transferred  before 
maturity.*     A  conveyance  of  the  premises  to  the  mort- 

N.  Y.  App.  295;  James  v.  Johnson,  6  Johns.  Ch.  417;  St.  Johns  v.  Spald- 
ing, 1  Thomp.  &  C.  483 ;  Pepper's  Appeal,  77  Pa.  St.  373 ;  Leech  v.  Bon- 
Ball,9  Phil.  204;  Neide  v.  Pennypacker,  9  Phil.  86;  Maryland  R.  Code, 
1878,  art.  xliv,  §§  37,  38;  Cal.  Civil  Code,  §  2934.  In  Beldenw.  Meeker, 
the  earlier  case  of  Hoyt  v.  Hoyt,  8  Bosw.  511,  was  overruled. 

1  New  York  Life  Ins.  etc.  Co.  v.  Smith,  2  Barb.  Ch.  82;  Ely  v.  Scofleld, 
35  Barb.  330;  Jones  v.  Gibbons,  9  Ves.  407,  410. 

*  Cal.  Civil  Code,  §  2935.  For  other  States  in  which  similar  provi- 
sions exist,  see  New  York,  Fay's  Dig.  of  Laws,  1874,  vol.  1,  p.  585;  Min- 
nesota, Gen.  Stats.  1878,  c.  40,  §  24;  Kansas,  Dassler's  Stats.  1876,  c. 
68,  §  3;  Nebraska,  Gen.  Stats.  1873,  c.  61,  §  39;  Comp.  Stats.  1881,  p. 
392;  Wisconsin,  Rev.  Stats.  1878,  p.  641,  §  2244;  Oregon,  Gin.  Laws, 
1872,  p.  519 ;  Michigan,  Comp.  Laws,  1871,  p.  1847 ;  Wyoming  Ty.,  Comp. 
Laws,  1876,  c.  3,  §  17. 

»  Belden  v.  Meeker,  47  N.  Y.  307;  Viele  v.  Judson,  82  N.  Y.  32.  But 
in  Massachusetts  it  is  held  otherwise:  Wolcott  v.  Winchester,  15  Gray, 
461;  Welch  v.  Priest,  8  Allen,  165;  Blunt  v.  Norris,  123  Mass.  55;  25 
Am.  Rep.  14. 

*  Jones  V.  Smith,  22  Mich.  360. 


§  661  REGISTRATION    OF    DEEDS.  892 

gagee,  after  the  assignment  of  the  mortgage,  will  not 
cause  a  merger  of  the  mortgage  title/  But  of  course  as 
against  all  other  persons  than  the  mortgagor,  who  claim 
title  other  than  through  the  mortgagee,  the  registration 
of  the  assignment  of  the  mortgage  is  unnecessary.  The 
original  mortgage  still  stands,  and  is  not,  so  far  as  prior- 
ity of  record  is  concerned,  affected  by  the  assignment.^ 
In  New  York,  it  has  been  held  that  a  power  of  attorney 
to  assign  a  mortgage  is  not  an  instrument  whose  registra- 
tion is  provided  for  by  the  recording  acts.  The  record 
of  such  an  instrument  is  not  notice.^  And  in  the  same 
State  a  similar  decision  was  made  with  reference  to  a 
power  of  attorney  to  collect  the  amount  due  on  a  mort- 
gage and  to  release  it.*  An  unrecorded  agreement  be- 
tween the  mortgagor  and  the  mortgagee,  that  the  latter 
should  release  from  the  operation  of  the  mortgage  a  part 
of  the  land,  upon  receiving  the  payment  of  a  specified 
sum,  does  not  bind  the  assignee  of  the  mortgage.^ 

§  fJOl.  In  some  States  defective  deeds  if  recorded  im- 
part notice. — In  a  few  of  the  States,  the  rule  seems  to 
prevail  that  a  deed  defectively  executed  or  unacknowl- 
edged is,  if  actually  recorded,  sufficient  notice  of  the 
equities  created  thereby.  In  Illinois,  where  this  rule 
obtains,  Scates,  C.  J.,  cites  a  number  of  authorities  in 
opposition  to  the  rule  he  proceeds  to  lay  down,  and  ob- 

>  Campbell  v.  Vedder,  3  Keyes,  174;  s.  c.  1  Abb.  N.  Y.  App.Dec,295; 
Purdy  V.  Huntington,  42  N.  Y.  334;  1  Am.  Eep.  532. 

"  Sprague  v.  Rockwell,  51  Vt.  401;  Campbell  v.  Vedder,  3  Keyes,  174; 
Viele  V.  Judson,  82  N.  Y.  32.  A  person  who  afterward  purchases  from 
the  mortgagee  is  required  to  ascertain  whether  the  mortgage  has  not 
been  previously  assigned.  If  he  does  not  make  this  search,  he  cannot 
claim  protection  as  a  bona  fide  purchaser.  See  on  this  subject,  Gillig  v. 
Maass,  28  N.  Y.  191 ;  Oregon  Trust  Co.  v.  Shaw,  5  Saw.  336;  Warner 
V.  Winf^low,  1  Sand.  Ch.  430;  Purdy  t;.  Huntington,  42  N.  Y.  334;  Bur- 
hans  V.  Hutcheson,  25  Kan.  625;  37  Am.  Rep.  274;  Van  Keuren  v.  Cor- 
kins,  6  Tliomp.  &  C.  355. 

'  WilUams  v.  Birbeck,  Hoffm.  359. 

*  Jackson  v.  Richards,  6  Cowen,  617. 

"  Warner  v.  Winslow,  1  Sand.  Ch.  430;  St.  John  v.  Spalding,  1 
Thomp.  &.  C.  483. 


893  REGISTRATION    OP    DEEDS.  §  661 

serves:  "I  have  referred  to  these  decisions  to  show  that 
they  were  made  upon  statutes  differing  from  ours;  some 
excluding  from  registration  and  record,  deeds,  etc.,  which 
were  too  defective  to  pass  the  estate;  others,  for  want  of 
compliance  with  the  law  in  relation  to  acknowledgments. 
Our  statute  has  introduced  a  very  differejit  policy,  both 
as  to  the  kinds  and  character  of  the  instruments  and 
the  acknowledgments.  In  its  language  it  comprehends 
everything  that  may  relate  to  or  affect  the  title,  and  re- 
quires all  such  to  be  recorded  without  any  qualification 
as  to  whether  they  be  sufficient  in  law  or  not,  to  effectuate 
the  object  purported  on  their  face.  It  would  seem  to  us 
to  be  the  intention  of  the  legislature,  in  general,  to  make 
the  registry  and  recording  books,  and  the  filing  of  levies, 
etc.,  as  complete  a  depository  as  possible  of  the  State,  of 
land  titles,  as  they  may  be  presented  and  affected  by  con- 
veyances, contracts,  encumbrances,  and  liens."  ^  In  that 
State,  in  accordance  with  this  construction  of  the  statute, 
it  is  held  that  though  a  deed  of  trust  executed  by  a  mar- 
ried woman  to  secure  the  purchase  money  due  on  the 
premises,  may  be  void  as  a  conveyance  because  her  hus- 
band does  not  unite  with  her  in  it,  yet,  nevertheless, 
it  is  an  instrument  in  writing  relating  to  real  estate, 
and  after  registration  is  constructive  notice  to  all  sub- 
sequent purchasers  of  the  lien  of  the  vendor  for  the 
unpaid  price.^  "It  is,  undoubtedly,"  said  Mr.  Justice 
Dickey,  "the  policy  of  our  recording  laws  that  every 
instrument  in  writing  relating  to  land,  when  once  re- 
corded, shall  be  notice  to  the  world  of  everything  stated 
in  such  instrument,  and  of  everything  which  is  neces- 
sarily implied  from  the  words  of  the  recorded  instru- 
ment. Those  appellants  claiming  as  subsequent  bona 
fide  purchasers  or  encuml)rancers  occupy  the  same  posi- 
tion in  this  case  as  they  would  have  done  had  this  instru- 
ment (not  having  been  recorded)  been  read  aloud  to  them 
by  the  appellee,  before  they  became  in  any  way  interested 
in   this  question.     As   against  her  grantee,  there  can  be 

»  Reed  v.  Kemp,  IG  111.  445,  451.        »  Morrison  v.  Brown,  83  III.  5G2. 


§§  662,  663  REGISTRATION    OF    DEEDS.  894 

no  doubt  of  her  riglit  to  assert  a  vendor's  lien.  As  to 
the  others,  they  have  conBtriULive  notice  of  her  equities. 
This  deed  of  trust  by  a  feme  covert  (her  husband  not  join- 
ing with  her  in  its  execution)  has  no  validity  as  a  con- 
veyance. It  has  no  force  or  power  to  create  a  lien.  A 
married  woman  can,  however,  without  the  aid  of  her  hus- 
band, accept  a  deed  and  hold  title  to  land.  She  can  also 
tell  tlie  truth,  and  there  is  no  law  to  render  its  utterance 
ineffectuaL  Under  our  statute,  as  to  the  effect,  as  notice 
of  recording  instruments  in  writing  relating  to  land,  the 
execution  and  recording  of  this  instrument  becomes  equiv- 
alent to  a  personal  dechiration  of  her  equitable  rights  to 
each  of  appellants  claiming  as  bona  fide  purchasers."  ^ 

§  662.  In  Kansas,  the  same  construction  is  placed 
upon  the  statute  of  that  State.  The  statute  provides  that 
"  no  instrument  affecting  real  estate  is  of  any  validity 
against  subsequent  purchasers  for  a  valuable  considera- 
tion without  notice,  unless  recorded."  The  court  con- 
sidered this  to  mean  that  an.y  instrument,  affecting  real 
estate,  would  be  good  against  subsequent  purchasers  if 
recorded.  It  said:  "  The  statute  nowhere  makes  an  ac- 
knowledgment necessary  to  the  validity  of  a  deed.  If  it 
be  sufficient  to  affect  real  estate  without  acknowledgment, 
then  it  may  be  recorded,  and  if  it  be  recorded,  then  sub- 
sequent purchasers  are  charged  with  notice.  The  statute 
only  goes  to  the  extent  of  providing  that  if  a  deed  be 
acknowledged  and  certified  in  the  manner  prescribed,  the 
original  may  be  read  in  evidence,  without  proof  of  the 
execution;  or,  if  recorded,  a  certified  copy  of  the  record, 
upon  proper  proof  of  inability  to  produce  the  original, 
may  be  read."  The  court  accordingly  held  that  a  deed 
having  been  in  fact  recorded  in  the  proper  office,  although 
not  acknowledged,  was  constructive  notice.^ 

§  663.     Registration  in  Trrong"  county. — The  various 
statutes    require  that    a   deed   shall    be  recorded   in    the 

*  Morrison  v.  Brown,  supra. 

*  Simpson  v.  Brown,  3  Kan.  172;  Brown  v.  Simpson,  4  Kan.  76. 


895  REGISTRATION    OP    DEEDS.  §  664 

county  in  whicli  the  land  conveyed  by  it  is  situated. 
A  person  desirous  of  ascertaining  the  condition  of  the 
title  to  a  particular  piece  of  land,  is  not  compelled  to 
search  the  records  of  every  county  in  the  State  to  ac- 
complish this  result.  If  he  examines  the  records  of  the 
county  in  which  the  land  lies,  he  does  all  that  the  law 
demands,  and  he  may  safely  act  upon  the  information 
thus  disclosed.  If  a  deed  is  recorded  in  a  different 
county  from  that  in  which  the  land  is  situated,  the  record 
cannot  operate  as  constructive  notice.^  And,  of  course, 
it  is  immaterial  that  the  deed  is  recorded  in  the  wrong 
county  under  a  mistake  as  to  the  true  locality  of  the  land.^ 

§  664.  L.and  in  two  counties. — Where  the  land  em- 
braced in  a  deed  is  situated  in  more  counties  than  one, 
the  deed  should  be  recorded  in  every  county  in  which  any 
part  of  the  land  lies.^  *'  The  object  of  the  registry  acts 
was  to  enable  a  person  about  to  purchase  lands,  to  as- 
certain whether  they  had  been  conveyed.  In  order  to 
do  this,  the  place  where  he  must  reasonably  be  led  to 
make  the  inquiry  is  the  probate  clerk's  office  of  the 
county  where  the  land  lies.  That  is  the  place  intended 
by  law  for  recording  the  deed  of  conveyance;  and  if, 
upon  examination,  he  finds  no  conveyance  there,  he  is 
justified  in  acting  upon  the  belief  that  none  has  been 
made.  If  this  were  not  true,  a  person  could  not  safely 
purchase  land  lying  in  any  particular  county,  without 
an  examination  of  the  probate  clerk's  ofiice  of  every 
county  in  the  State;  for  the  land  which  he  is  about  to 
purchase  might  be  embraced  in  a  deed,  conveying,   also, 

»  King  v.  Portia,  77  N.  0.  25;  Harper «.  Tapley,  35  Miss.  506,  510  j 
Adams  v.  Hayden,  60  Tex.  223;  Perrin  v.  Reed,  35  Vt.  2;  Stewart  t). 
McSweeney,  14  Wis.  468,  471;  Harris  u.  Monro  Cattle  Co., 84  Tex.  674; 
Hawley  v.  Bullock,  29  Tex.  216. 

»  Adams  v.  Hayden,  60  Tex.  223.     See  Jones  v.  Powers,  65  Tex.  207. 

•  Perrin  v.  Reed,  35  Vt.  2;  Stevens  v.  Brown,  3  Vt.  420;  23  Am.  Dec. 
215;  Horsley  v.  Garth,  2  Gratt.  471;  44  Am.  Dec.  393;  Astor  v.  Wells,  4 
Wheat.  466;  Stewart  v.  McSweeney,  14  Wis.  468;  Crosby  v.  Huston,  1 
Tex.  203;  Hundley  v.  Mount,  8  Smedes  &  M.  387.  See  Hill  v.  Wilson,  4 
Rich.  521;  65  Am.  Dec.  696;  Bagley  v.  Kennedy,  94  Ga.  651. 


§   665  REGISTRATION    OF    DEEDS.  896 

land  in  some  other  county,  and  recorded  in  that  county"^ 
The  deed  is  properly  recorded  in  any  county  in  which 
a  part  of  the  land  is  situated.^  A  deed  so  recorded  in  one 
county  is  considered  as  admissible  in  evidence,  under 
the  Michigan  statute,  in  any  other  county  as  to  any  of 
the    lands  described  in  it  that  lie  within  the  State.* 

§  665.     Eeg-istration  of  copy  of  deed  in  proper  county. 

If  a  deed  has  been  recorded  in  the  wrong  county,  and  a 
copy  of  such  record  has  been  recorded  in  the  proper 
county,  the  record  of  the  copy  cannot  avail  as  notice  to 
subsequent  purchasers.  This  rule  rests  upon  the  ground 
that  such  copy  is  not  entitled  to  be  recorded,  and  hence 
conveys  no  notice.*  In  a  case  where  it  was  insisted  that 
a  record  in  one  county  of  a  copy  of  a  deed  from  another 
county  was  sufficient  to  put  subsequent  purchasers  upon 
inquiry,  the  court  said:  "To  hold  that  parties  ought  to 
have  been  put  upon  inquiry  by  this  record  would  be 
precisely  the  same  thing  as  holding  them  affected  with 
notice.  This  would  be  giving  to  the  record  of  an  instru- 
ment not  entitled  to  be  recorded  the  same  force,  as  to 
notice,  that  we  give  to  one  legally  reduced  to  record.  We 
do  not  think  any  authority  can  be  found  in  support  of 
this  proposition.  On  the  contrary,  the  familiar  rule,  and 
one  laid  down  by  this  court,  is,  tliat  the  record  of  an 
instrument  not  entitled  by  law  to  be  recorded  is  of  no 
avail  as  notice.^  It  is  said  that  a  purchaser,  as  a  mat- 
ter of  fact,  receives  the  same  information  from  the  record 
of  a  copy  as  from  the  record  of  an  original  instrument. 
That  may  be  true.  But  the  broad  difference  is  this: 
"  The  statute  only  authorizes  the  record  of  original  in- 
struments, and  it  makes  that  record  conclusive  evidence 
of  notice.  It  matters  not  that  a  subsequent  purchaser 
has  not,  as  a  matter  of  fact,  seen  the  record.     If  the  in- 

»  Harper  v.  Tapley,  35  Miss.  506,  509,  per  Handy,  J. 

»  Brown  v.  Lazarus,  25  S.  W.  Rep.  71 ;  5  Tex.  Civ.  App.  81. 

*  Wilt  V.  Cutler,  38  Mich.  189. 

*  Lewis  V.  Baird,  3  McLean,  56;  Pollard  v.  Lively,  2  Gratt.  216. 

*  Citing  Moore  v.  Hunter,  1  Gilm.  317. 


897  REGISTRATION    OF    DEEDS.  §  666 

strument  has  been  legally  recorded,  the  law  presumes 
him  to  have  seen  it,  and  holds  him  to  the  consequences 
of  such  knowledge.  Not  so  as  to  the  registry  of  a  copy. 
It  may  be  that,  if  a  party  can  be  clearly  proven  to  have 
read  the  record,  he  should  be  held  to  have  derived  from 
it  the  same  degree  of  actual  knowledge  that  he  would 
have  derived  from  seeing  a  copy  of  an  instrument  in  the 
hands  of  a  private  individual.  He  might  be  considered 
as  put  upon  inquiry.  But  the  law  does  not  presume  him 
to  have  read  the  record  of  an  instrument  not  authorized 
to  be  recorded."  ^ 

§  GGG.  Certified  copy  of  deed  recorded  in  wrong" 
county  as  evidence. — Related  to  the  subject  we  are  now 
considering  is  the  question  whether  a  certified  copy  of  a 
deed  recorded  in  a  county  other  than  that  in  which  the 
land  is  situated,  can  be  received  in  evidence  in  the  proper 
county  to  affect  the  title  to  the  premises  described  in  the 
deed.  It  is  held  that  where  deeds  embrace  lands  lying 
in  two  counties,  and  are  recorded  in  only  one  of  them, 
exemplifications  of  the  records  are  competent  evidence 
upon  the  proof  of  the  loss  of  original  deeds  to  prove  their 
contents  in  an  action  of  ejectment  for  the  recovery  of  the 
premises  which  lie  in  that  county  where  the  deeds  were 
not  recorded.-  But  it  is  also  held  that  an  authenticated 
copy  of  a  deed  recorded  in  a  county  in  which  the  land 
does  not  lie,  is  not  competent  evidence  of  the  original,  for 
the  reason  that  "where  the  law  gives  no  authority  for  the 
reception  of  such  acknowledgment  or  proof  and  admission 
to  recordation,  the  record  of  those  acts,  and  the  certificate 
of  the  public  custodier  of  the  record,  are  entitled  to  no 
more  respect  than  if  the  same  had  been  performed  by  a 
private  individual."' 

'  St.  John  V.  Conger,  40  111.  535,  536,  per  Lawrence,  J.,  delivering  the 
opinion  of  the  court. 

»  JackHon  v.  Kice,  3  Wend.  180;  20  Am.  Dec.  683;  Scott  v.  Leather,  3 
Yeates,  184.  And  see  Lessee  of  Delancey  v.  McKeen,  1  Wash.  C.  0. 354; 
Conn  V.  Manifee,  2  Marsh.  A.  K.  396;  12  Am.  Dec.  417;  Simms  v.  Read, 
Cooke,  345. 

»  Pollard  V.  Lively,  2  Gratt.  216,  218.     In  Lewis  v.  Baird,  3  McLean, 
DEEDS,  Vol.  U.  —  57 


g  G67  REGISTRATION    OF    DEEDS,  898 

§  667.  Presumption  of  actual  notice  from  examina- 
tion of  records. — In  a  case  in  Pennsylvania,  the  land 
conveyed  by  a  deed  was  situated  in  two  counties,  but  the 
deed  was  recorded  in  one  of  them  only.  Attached  to  the 
deed,  written  under  the  certificate  of  acknowledgment, 
was  a  memorandum  stating  that  part  of  the  land  had 
been  sold.  It  was  not  satisfactorily  shown  that  the  mem- 
orandum referred  to  was  written  before  the  execution  of 
the  deed,  but  the  deed  with  the  memorandum  was  re- 
corded. The  lower  court  instructed  the  jury  that  the 
memorandum  on  the  original  deed,  if  it  was  there  at  the 
time  of  the  execution  of  the  deed,  constituted  a  part  of 
the  deed  and  was  legally  recorded;  and  as  part  of  the  land 
conveyed  by  the  deed  was  situated  in  the  county  in  which 
the  deed  was  recorded,  and  in  which  the  plaintiff  resided, 
that  such  record  w^as  notice  to  him  of  the  contents  of  the 
memorandum,  and  bound  him  also  as  to  the  part  situated 
in  the  other  county  in  which  the  deed  was  not  recorded. 
The  supreme  court  held  that  it  was  a  reasonable  presump- 
tion that  the  plaintiff  inspected  the  registry  in  the  proper 
county,  and  thus  acquired  actual  notice  of  the  conveyance, 
but  reversed  the  case  because  the  registry  was  defective 
in  the  fact  that  the  memorandum  was  not  acknowledged, 
and  hence  was  not  entitled  to  be  recorded.^  Chief  Justice 
Gibson  on  the  first  point,  after  adverting  to  previous 
decisions  that  the  registry  of  a  deed  defectively  acknowl- 
edged is  not  constructive  notice  as  to  land  in  the  proper 
county,  and  is  deemed  no  evidence  of  notice  whatever, 
said:  "These  authorities  are  not  controverted;  but  it  has 
been  intimated  that  a  presumption  may  arise  of  actual 

56,  63,  it  is  said:  "But  if  the  deed  were  a  conve5'ance  in  fee  of  these 
military  lands,  a  record  of  it  in  Kentucky,  though  duly  certified,  would 
not  make  the  copy  evidence  in  this  State.  The  deed  is  required  to  be 
recorded  in  this  State,  after  it  has  been  duly  acknowledged,  and  a  certi- 
fied copy  of  the  record  thus  made  is  evidence  under  the  statute.  The 
recording  of  the  deed,  therefore,  in  Kentucky,  if  clearly  shown,  would 
not  make  either  a  certified  or  sworn  copy  from  the  record  evidence.  The 
original  being  lost,  a  sworn  copy  of  it  is  the  next  best  proof."  See  Ken- 
nedy V.  Harden,  92  Ga.  230 ;  18  S.  E.  Rep.  542. 
^  Kerns  v.  Swope,  2  Watts,  75. 


899  REGISTRATION    OF    DEEDS.  §  667 

inspection  of  the  defective  registry,  which  is  said  to 
amount  to  actual  notice  of  the  contents  of  the  original 
paper.  The  ground  of  the  supposed  presumption  is  the 
fact  that  the  plaintiff  purchased  along  with  the  tracts  in 
dispute,  certain  other  tracts  included  in  the  conveyance 
to  the  bank,  which  are  situate  in  Huntingdon  county, 
where  the  conveyance  and  what  purports  to  be  the  mem- 
orandum containing  a  recital  of  the  material  facts  were 
registered  together;  and  as  the  original  was  lost,  it  is 
supposed  to  be  a  reasonable  presumption  that  the  plain- 
tiff purchased  on  the  faith  of  the  registry  in  that  county, 
and  actually  inspected  it.     Nothing  is  more  reasonable."^ 

^  Kerns  v.  Swope,  2  Watts,  75.  The  learned  justice  said,  however,  that 
the  registry  was  defective.  "The  memorandum  of  the  recital,  thought 
to  be  material,  purports,  according  to  the  registry,  to  have  been  indorsed 
on  the  conveyance,  but  underneath  the  certificate  of  the  acknowledg- 
ment, which  contains  neither  reference  nor  allusion  to  it;  and  the  orig- 
inal was  therefore  destitute  of  the  evidence  of  authentication  required 
by  the  law  to  entitle  it  to  be  registered.  The  registration,  therefore, 
being  without  the  authority  of  the  law,  was  the  unofficial  act  of  the 
officer,  which  could  give  the  copy  no  greater  validity  than  the  original, 
deprived  of  legal  evidence  of  execution ;  nor  even  so  much,  for  an  original 
deed  exhibited  to  a  purchaser  would  affect  him  though  it  were  unaccom- 
panied with  the  evidence  of  its  execution.  But  here  the  registry  was  no 
better  than  a  copy  made  by  a  private  person  in  a  memorandum-book, 
from  which  a  purchaser  would  be  unable  to  determine  whether  there 
was,  in  fact,  an  indorsement  on  the  deed,  or  whether  it  had  been  truly 
copied,  especially  when  neither  the  copy  nor  an  exemplification  of  it 
would  be  legal  evidence  of  the  fact  in  a  court  of  justice.  Unquestion- 
ably a  purchaser  would  not  be  affected  by  having  seen  the  copy  of  a 
conveyance  among  the  papers  of  another,  or  an  abstract  of  it  in  a  private 
book.  The  whole  effect  of  a  registry,  whether  as  evidence  of  the  original 
or  as  raising  a  legal  presumption,  that  the  copy  thus  made  equipollent 
to  the  original  had  been  actually  inspected  by  the  party  to  be  affected, 
is  derived  from  the  positive  provisions  of  the  law;  and  when  unsustained 
by  these,  a  registry  can  have  no  operation  whatever.  Stripped  of  artifi- 
cial effect,  it  is  but  the  written  declaration  of  the  person  who  was  officer 
at  the  time,  that  he  had  seen  a  paper  in  the  words  of  the  copy  which 
purported  to  be  an  original.  But  to  say  nothing  in  this  place  of  the  in- 
competency of  such  a  declaration  as  evidence  of  the  fact,  on  what  pi-in- 
ciple  would  a  purchaser  be  bound  to  attend  the  hearsay  iniorraation  of 
one  who  is  not  qualified  to  give  it.  Since  the  decision  in  Cornwallis' 
case,  Toth.  254,  and  Wildgoose  v.  Wayland,  Goulds.  147,  pi.  67,  it  has 
been  considered  a  settled  principle  that  the  vague  reports  of  strangers, 
or  information  given  by  a  person  not  interested  in  the  property,  are  in- 
suthcient.    It  has  been  held  even  that  a  general  claim  may  be  disre- 


§  668  REGISTRATION    OF    DEEDS.  900 

In  New  Hampshire,  under  the  statute  in  force  at  the 
time  the  decision  was  rendered,  it  was  necessary  tliat  a 
deed  should  be  attested  by  two  witnesses.  A  deed,  liow- 
ever,  with  one  witness,  or  none  at  all,  was  good  between 
the  parties.  A  deed  witnessed  by  one  witness  only  was 
recorded.  The  court  held  that  the  grantee  in  such  a  deed 
is  entitled  to  the  land  against  a  subsequent  attachment 
and  extent,  if  the  creditor,  at  the  time  of  his  attachment, 
had  notice  of  the  deed,  and  that  actual  notice  of  the 
record  will  be  regarded  as  actual  notice  of  the  prior  deed.* 
"As  the  deed  in  this  case,"  said  Perley,  J.,  "was  not  exe- 
cuted according  to  the  statute,  the  registration  as  such  is 
inoperative;  that  is  to  say,  the  registration  is  not  con- 
structive notice  of  the  conveyance.  But,  if  by  means  of 
that  registration  of  the  defective  deed,  the  defendants  had 
actual  notice  of  the  plaintiff's  title,  they  are  charged  with 
the  notice  as  in  other  cases.  The  defendants,  when  they 
found  the  copy  of  the  plaintiff's  deed  on  record,  must 
have  understood  that  the  intended  record  was  to  give  in- 
formation that  such  a  deed  had  been  made,  and  that  the 
plaintiff  claimed  the  land  under  it.  This  must  be  re- 
garded as  actual  notice,  such  as  every  reasonable  and 
honest  man  would  feel  bound  to  act  upon."^ 

§  668.     Comments. — The  case  of  Kerns  v.  Swope^  can 
scarcely  be  regarded  as  an  authority  for  the  proposition 

garded.  There  certainly  are  cases  which  seem  to  cast  a  doubt  on  the 
principle.  But  as  is  properly  remarked  by  Mr.  Sugden  in  his  treatise  on 
Vendors,  the  point  of  notice  to  which  the  remark  of  Chief  Baron  Hale 
was  directed,  in  Fry  v.  Porter,  1  Mod.  300,  did  not  relate  to  a  purchaser. 
In  Butcher  v.  Stapely,  1  Vern.  364,  the  purchaser  was  affected  with 
notice,  of  which  it  is  said,  there  was  no  other  direct  evidence  than  what 
might  have  been  gleaned  from  the  conversation  of  some  neighbors,  who 
said  that  they  had  heard  that  the  vendor  had  sold  the  estate  to  the 
plaintiff.  It  is  obvious  that  to  decree  on  parol  evidence  of  loose  conver- 
sations in  the  presence  of  the  party,  which  may  not  have  been  heard  or 
understood  by  him,  would  be  attended  with  extreme  danger  of  injustice ; 
and,  notwithstanding  this  decision,  the  rule  seems  to  be  established  as 
I  have  stated  it,  having  been  recognized  by  this  court  in  Peebles  v. 
Beading,  8  Serg.  &  R.  480,  and  Eipple  v.  Eipple,  1  Rawle,  386." 

1  Hastings  v.  Cutler,  4  Fost.  (24  N.  H.)  481. 

'  Hastings  v.  Cutler,  supra.  *  2  Watts,  75. 


901  REGISTRATION    OF    DEEDS.  §  668 

that  a  presumption  of  fact  exists  tliat  a  purchaser  inspects 
the  records,  and  thus  obtains  notice  of  the  contents  of 
conveyances  spread  upon  the  records,  affecting  the  title 
not  only  to  lands  situated  in  the  county  in  which  the  rec- 
ords are,  but  also  of  lands  situated  in  that  and  other  coun- 
ties. The  court  declares,  it  is  true,  that  this  is  a  reason- 
able presumption,  but  the  case  was  decided  on  the  point 
that  the  portion  of  the  deed  in  question  was  not  acknowl- 
edged, and  hence  not  entitled  to  registration.  The  re- 
marks of  the  court,  therefore,  upon  the  question  of 
presumption  may  be  treated  as  obiter  dicta.  The  rule  in- 
dicated by  the  court  in  that  case  can  rest  upon  no  sound 
reason.  Whether  a  purchaser  inspects  or  does  not  in- 
spect the  records  of  the  county  in  which  the  land  he 
is  about  to  purchase  is  situated,  cannot  be  made  a  mat- 
ter of  presumption.  It  is  a  matter  of  fact,  of  evidence. 
To  adopt  the  rule  that  actual  notice  should  in  such  a 
case  be  presumed  is,  in  the  opinion  of  the  author,  to  es- 
tablish a  doctrine  in  direct  conflict  with  the  spirit  and 
intent  of  the  whole  system  of  registration  laws.  Con- 
structive notice  can  seldom  be  equivalent  to  actual 
notice.  Yet,  if  the  statutes  relative  to  registration  are 
complied  with,  a  subsequent  purchaser  is  bound  by  the 
information  contained  in  the  records,  whether  he  has 
actual  knowledge  of  the  facts  or  not.  But  the  whole  cur- 
rent of  decision  is  to  the  effect  that,  to  give  the  record 
this  character  of  affording  constructive  notice,  every  re- 
quirement of  the  statute  must  be  observed.  A  failure  in 
any  essential  respect  renders  the  record  ineffectual  as 
constructive  notice.  In  Hastings  v.  Cutler,^  a  more  rea- 
sonable rule  is  laid  down,  yet  one  to  which  objection  may 
be  raised.  It  is  not,  however,  unreasonable  to  require  a 
person  who  has  actual  knowledge  that  there  is  a  deed, 
valid  between  the  parties  in  existence,  to  make  inquiry  to 
ascertain  the  rights  of  the  grantee.  But  it  is  presumed 
that,  under  this  decision,  it  would  first  be  necessary  to 
show  such  actual  knowledge  by  competent  evidence.     No 

4  Fost.  481. 


§  669  REGISTRATION    OF    DEEDS.  902 

presumption  can  result  that  a  purchaser  had  such  knowl- 
edge. 

§  669.  Chang-e  of  boundaries  of  county. — If  a  deed 
has  been  registered  in  the  county  in  which  the  land  lies, 
it  is  not  necessary  to  record  it  again  in  a  new  or  other 
county  into  which  tlie  former  county  may  be  divided,  or 
to  which  it  may  be  annexed,  "We  are  not  apprised  of 
any  statute  which  would  require  an  owner  of  land,  having 
his  deed  properly  registered  in  the  county  where  the  land 
lies,  to  have  his  conveyance  again  recorded  as  often  as, 
by  subdivisions  and  changes,  the  land  may  fall  into  a 
new  or  different  county.  Very  prudent  men  may  use 
such  precautions.  But  it  is  not  necessary  for  the  protec- 
tion of  their  rights,  the  first  registry  being  amply  suffi- 
cient." ^  If  the  land,  at  the  date  of  the  deed,  lies  in  one 
county,  but  if,  at  the  time  it  is  presented  for  registration, 
a  new  county  has  been  carved  out  of  the  old  one,  which 
includes  the  land  described  in  the  deed,  the  conveyance 
must  be  recorded  in  the  new  county,  and  not  in  the  old.^ 

^  McKissick  v.  Colquhoun,  18  Tex.  148. 

'  Garrison  v.  Hayden,  1  Marsh.  J.  J.  222;  19  Am.  Dec.  70.  This  case 
was  an  action  of  ejectment,  and  the  plaintiff,  in  deraigning  title,  offered 
a  deed  certified  by  the  clerk  of  the  county  court  of  Fayette  for  the  land, 
acknowledged  and  recorded  in  that  county.  The  land,  at  the  date  of  the 
deed,  was  in  Fayette  county,  but,  at  the  time  it  was  acknowledged,  was 
in  Jessamine,  which  county  had,  in  the  interval  between  the  date  and 
acknowledgment,  been  established.  The  nisi  prius  court  rejected  the  cer- 
tified copy  of  the  deed,  and  this  was  claimed  to  be  error.  The  court  said : 
"A  proper  construction  of  either  the  letter  or  object  of  the  act  of  assembly, 
which  requires  deeds  for  land  to  be  recorded  in  the  county  in  which  the 
land  lies,  must  sustain  the  opinion  of  the  circuit  court.  The  deed  must 
be  recorded  in  the  county  in  which  the  land  lies  at  the  time  the  deed  ia 
deposited  for  registration.  When  a  party  is  about  to  deposit  his  deed  to 
be  recorded,  the  act  of  assembly  addresses  him  in  this  language :  '  Have 
it  recorded  in  the  county  in  which  the  land  lies;  that  is,  the  county  in 
which  the  land  lies  now  when  you  make  the  deposit.'  The  object  of  this 
requisition  is  to  give  notice  in  the  county  of  the  transference  of  the  title  to 
the  land.  As,  therefore,  the  clerk  of  Fayette  had  no  legal  right  to  receive 
the  acknowledgment,  his  certificate  of  the  fact  of  acknowledgment  is  no 
authentication  of  the  deed.  The  recording  of  a  deed  not  being  necesf^ary 
to  pass  the  title,  as  between  the  parties  to  it,  proof  of  the  original  by  the 
subscribing  witnesses  would  have  been  sufficient  for  the  plaintiff  in  this 


903  REGISTRATION    OF    DEEDS.  §§  670,  G71 

§  670.     Purchaser  under  quitclaim  deed — Comments. 

The  law  is  not  uaiforin  on  the  question  whether  a  grantee 
under  a  quitclaim  deed  is  to  be  considered  a  bona  fide 
purchaser,  entitled  to  the  protection  of  the  registry  laws. 
By  a  conveyance  of  this  character  he  succeeds  to  such 
title  only  as  the  grantor  possesses  at  the  time  the  deed  is 
executed.^  He  cannot  claim  the  benefit  of  any  title  sub- 
sequently acquired  by  his  grantor.  It  has  in  some  States 
been  held  that  as  he  obtains  the  grantor's  title  onl}^,  he 
acquires  nothing  at  all,  if  the  grantor  has  previously 
transferred  this  title  to  another,  and  that  it  is  immaterial 
whether  he  has  notice  of  this  fact  or  not.  On  the  other 
hand,  it  is  considered  in  other  States,  that  this  convey- 
ance is  effectual  to  conve}''  such  title  as  the  grantor  pos- 
sesses, and  such  title  as,  under  the  registry  laws,  the 
grantee  has  a  right  to  assume,  is  vested  in  the  grantor. 

§  671.  View  that  such  purchaser  is  not  entitled  to  the 
protection  of  the  reg-istry  acts. — The  doctrine  that  a  pur- 
chaser under  a  quitclaim  deed  is  not  a  bona  fide  purchaser 
witliout  notice,  prevails  in  many  courts,  and  is  supported 
by  eminent  authority.  It  was  held  in  some  of  the  earlier 
decisions  of  the  United  States,  that  "a  piirchaser  by  a 
deed  of  quitclaim,  without  any  covenant  of  warranty,  is 
not  entitled  to  protection  in  a  court  of  equity  as  a  pur- 
chaser for  a  valuable  consideration  without  notice;  and  he 
takes  only  what  the  vendor  could  lawfully  convey."^     But 

case.  But,  as  he  chose  not  to  offer  such,  proof,  and  relied  on  the  certifi- 
cate of  the  Fayette  clerk,  he  must  abide  the  consequence  of  his  error," 
See,  also,  Bell  v.  Fry,  5  Dana,  344.  Where  there  has  been  a  change  in 
the  boundaries  of  a  county,  a  deed  is  properly  recorded  in  the  county  in 
which  the  land  was  situated  at  the  time  of  recording:  Green  v.  Green, 
103  Cal.  108.     See  Kennedy  v.  Harden,  92  Ga.  230. 

^  See  Mclnerney  v.  Beck,  10  Wash.  515;  Spaulding  v.  Bradley,  79 
Cal.  449. 

'  Oliver  v.  Piatt,  3  How.  333.  See,  also,  May  v.  Le  Claire,  11  Wall. 
217,  232;  Villa  v.  Rodriguez,  12  Wall.  323;  Van  Rensselaer  v.  Kearney, 
11  How.  297;  Hanrick  v.  Patrick,  119  U.  S.  56;  Gest  v.  Packwood,  34 
Fed.  Rep.  368;  Hastings  v.  Nissen,  31  Fed.  Rep.  697;  Woodward  v. 
Jewell,  25  Fed,  Rep.  6;  Baker  v.  Humphrey,  101  U.  S.  494;  Dickerson 
r.  Colgruve,  100  U.  S.  578.     And  see,  also,  White  v.  McGarry,  2  Flip.  572. 


§   071  REGISTRATION    OF    DEEDS.  904 

in  more  recent  cases  this  rule  seems  no  longer  to  be  recog- 
nized, and  it  is  said  by  Mr.  Justice  Field:  "The  character 
of  a  bona  fide  purchaser  must  depend  upon  attending  cir- 
cumstances or  proof  as  to  the  transaction,  and  does  not 
arise,  as  often,  though  we  think,  inadvertently  said,  either 
from  the  form  of  the  conveyance  or  the  presence  or  the 
absence  of  any  accompanying  warranty.  Whether  the 
grantee  is  to  be  treated  as  taking  a  mere  speculative  chance 
in  the  property,  or  a  clear  title,  must  depend  upon  the 
character  of  the  title  of  the  grantor  when  he  made  the 
conveyance;  and  the  opportunities  afforded  the  grantee  of 
ascertaining  this  fact  and  the  diligence  with  which  he  has 
prosecuted  them,  will,  besides  the  payment  of  a  reasonable 
consideration,  determine  the  bona  fide  nature  of  the  trans- 
action on  his  part.^     In  Iowa  the  rule  stated  by  the  court 

1  Moelle  V.  Sherwood,  148  U.  S.  21,  30.  In  United  States  v.  California 
and  Oregon  Land  Co.,  148  U.  S.  31,  45,  Mr.  Justice  Brewer  said:  "As 
against  these  evidences  and  conclusions  of  good  faith,  but  a  single  propo- 
sition is  raised,  one  upon  which  the  dissenting  judge  in  the  circuit  court 
of  appeals  rested  his  opinion,  and  that  is  the  proposition  that  the  con- 
veyance^ from  the  road  company  were  only  quitclaim  deeds,  and  that  a 
purchaser  holding  under  such  a  deed  cannot  be  a  bona  fide  purchaser ; 
and  in  support  of  this  proposition  reference  is  made  to  the  following 
cases  in  this  court:  Oliver  v.  Piatt,  3  How.  333,  410;  Van  Rensselaer  v. 
Kearney,  11  How.  297;  May  v.  Le  Claire,  11  Wall.  217,  232;  Villa  v. 
Rodriguez,  12  Wall.  323;  Dickerson  v.  Colgrove,  100  U.  S.  578;  Baker 
V.  Humphrey,  101  U.  S.  594;  Hanrick  v.  Patrick,  109  U.  S.  156.  The 
argument  briefly  stated  is  that  he  who  will  give  only  a  quitclaim  deed 
in  effect  notifies  his  vendee  that  there  is  some  defect  in  his  title,  and 
the  latter  taking  with  such  notice,  takes  at  his  peril.  It  must  be  con- 
fessed that  there  are  expressions  in  the  opinions  in  the  cases  referred  to 
which  go  to  the  full  length  of  this  proposition.  Thus,  in  Baker  v.  Humph- 
rey, 101  U.  S.  494,  499,  Mr.  Justice  Swayne,  in  delivering  the  opinion 
of  the  court,  uses  this  language:  'Neither  of  them  was  in  any  sense  a 
bona  fide  purchaser.  No  one  taking  a  quitclaim  deed  can  stand  in  that 
relation.'  Yet  it  may  be  remarked  that  in  none  of  these  cases  was  it 
necessary  to  go  to  the  full  extent  of  denying  absolutely  that  a  party  tak- 
ing a  quitclaim  deed  could  be  a  bona  fide  purchaser;  and  in  the  later 
case  of  McDonald  v.  Belding,  145  U.  S.  492,  it  was  held,  in  a  case  coming 
from  Arkansas,  and  in  harmony  with  the  rulings  of  the  supreme  court 
of  that  State,  tliat  while  ordinarily  a  person  holding  under  a  quitclaim 
deed  may  be  presumed  to  have  had  knowledge  of  imperfections  in  his 
vendor's  title,  yet  that  the  rule  was  not  universal,  and  that  one  might 
become  a  bona  fide  purchaser  for  value  although  holding  under  a  deed  of 


905  REGISTRATION    OF    DEEDS.  §  671 

is:  "One  holding  title  under  such  a  deed  is  not  to  be  re- 
garded as  a  bona  fide  purchaser  without  notice  of  equities 
held  by  others."  ^  But  language  to  a  contrary  effect  is  found 
in  a  previous  decision  in  that  State.^  The  court,  however, 
subsequently  claimed  that  in  that  case  the  question  was 
not  presented,  and  that  the  only  point  decided  was  that, 
under  the  recording  laws,  a  purchaser  under  a  quitclaim 
deed  acquired  a  prior  right  to  one  claiming  under  an  un- 
recorded bond  for  a  deed  of  which  he  had  no  notice,  be- 
cause the  quitclaim  deed  conveyed  the  legal  title.^  In 
Minnesota,  the  statute  declared  that:  "A  deed  of  quit- 
claim and  release,  of  the  form  in  common  use,  shall  be 
sufficient  to  pass  all  the  estate  which  the  grantor  could 
lawfully  convey  by  deed  of  bargain  and  sale."  Comment- 
ing upon  this  language,  the  court  said:  "If  the  legislature 
intended  by  the  use  of  the  term  'lawfully  convey,'  to 
limit  the  estate  conveyed  to  such  as  the  grantor  had  a 
legal  right  to  convey,  then,  as  he  may  not  lawfully  con- 
vey land  which  he  has  already  conveyed  to  another,  but 
may  release  any  real  or  fancied  interest  remaining  in  him, 
nothing  passes  beyond  his  actual  interest  at  the  time  of 
the  conveyance,  whatever  that  may  be.  When,  therefore, 
a  person  relies  on  a  mere  quitclaim  of  the  interest  which 
a  party  may  have  in  property,  he  does  so  at  his  peril,  and 
must  see  to  it,  that  there  is  an  interest  to  convey.  He  is 
presumed  to  know  what  he  is  purchasing,  and  takes  his 

that  kind ;  and  in  that  case  the  grantee  so  holding  was  protected  as  a 
bona  fide  purchaser;  while  in  the  case  of  Moelle  v.  Sherwood,  just  de- 
cided, ante,  21,  the  general  question  was  examined,  and  it  was  lield  tliat 
the  receipt  of  a  quitclaim  deed  does  not  of  itself  prevent  a  party  from 
becoming  a  bona  fide  holder,  and  tlie  expressions  to  the  contrary,  in  pre- 
vious opinions,  were  distinctly  affirmed." 

*  Watson  V.  Phelps,  40  Iowa,  482,  483 ;  Raymond  v.  Morrison,  59  Iowa, 
371;  Smith  v.  Dunton,  42  Iowa,  48;  Springer  v.  Bartle,  46  Iowa,  688; 
Besore  v.  Dosh,  43  Iowa,  211,  212;  Pastel  v.  Palmer,  71  Iowa,  157;  32 
N.  W.  Rep.  257 ;  Butler  v.  Barkley ,  61  Iowa,  491 ;  25  N.  W.  Rep.  747 ;  Steele 
V.  Sioux  Valley  Bank,  79  Iowa,  339;  18  Am.  St.  Rep.  370;  Light  v.  West, 
42  Iowa,  1:^,8;  Pleasants  v.  Blodgett,  39  Neb.  741;  42  Am.  St.  Rep.  624. 

^  Pettingill  v.  Devin,  35  Iowa,  353. 

*  Springier  v.  Bartle,  46  Iowa,  690.  And  see,  also,  Steele  v.  Sioux 
Valley  Bank,  79  Iowa,  339;  18  Am.  St.  Rep.  370. 


§  672  KEGISTRATION    OP    DEEDS.  900 

own  risk."  ^  And  hence  in  that  State,  a  purchaser  under 
a  quitclaim  deed  is  not  regarded  as  a  purchaser  entitled 
to  the  henefits  of  the  registration  acts.^  But  the  statute 
in  that  State  has  been  changed,  and  a  purchaser  under  a 
quitclaim  deed  is  regarded  as  a  bona  fide  purchaser.'^  This 
is  also  the  rule  in  Missouri,*  Texas,^  and  Alabama.** 

%  672.  View  that  such  purchaser  is  entitled  to  the 
full  protection  of  the  recording  laws. — But  in  other 
States,  and  more  reasonably,  as  it  seems  to  us,  it  is  held 
that  a  purchaser  under  a  quitclaim  deed  who  becomes 
such  in  good  faith  and  for  a  valuable  consideration,  may 
claim  the  benefit  of  the  recording  laws,  and  that  his  con- 
veyance, if  first  recorded,  will  prevail  over  a  prior  deed 
of  bargain  and  sale.  This  is  the  rule  adopted  in  Cali- 
fornia. In  that  State,  Mr.  Justice  Belcher  said:  "Tiiere 
can  be  no    doubt  upon    the    question  presented,  if  real 

1  Martin  v.  Brown,  4  Minn.  282,  292,  per  Emmett,  C.  J. 
^  Marshall  v.  Roberts,  18  Minn.  405 ;  10  Am.  Rep.  201 ;  Everest  v, 
Ferris,  16  Minn.  26.     See,  also,  Hope  v.  Stone,  10  Minn.  152. 

»  Strong  V.  Lynn,  38  Minn.  315;  37  N.  W.  Rep.  448;  Prentice  v.  Duluth 
Storage  Co.,  58  Fed.  Rep.  437. 

*  Stoffel  V.  Schroeder,  62  Mo.  147;  Ridgeway  v.  Holliday,  59  Mo.  444. 
^  Rodgers  v.  Burchard,  34  Tex.  441 ;  7  Am.  Rep.  283;  Graham  v.  Haw- 
kins, 38  Tex.  628;  Richardson  v.  Levi,  67  Tex.  359;  3  S.  W.  Rep.  444; 
Harrison  v.  Boring,  44  Tex.  255 ;  Fletcher  v.  Ellison,  1  Tex.  Civ.  Cas.  661 ; 
Tiioon  V.  Newsom,  64  Tex.  161 ;  53  Am.  Rep,  747 ;  Taylor  v.  Harrison,  47 
Tex,  4:4 ;  26  Am.  Rep.  304. 

«  Smith's  Heirs  v.  Bank  of  Mobile,  21  Ala.  125;  Walker  v.  Miller,  11 
Ala.  1067,  1082,  10S4;  Barclift  v.  Liilie,  82  Ala.  319;  2  So.  Rep.  120;  Der- 
rick V.  Brown,  66  Ala.  162;  O'Neal  v.  Seixas,  85  Ala.  80;  4  So.  Rep.  745. 
See,  also,  Bragg  v.  Paulk,  42  Me.  502;  Boon  v.  Chiles,  10  Peters,  177; 
Vattier  v.  Himie,  7  Peters,  252;  Nash  v.  Bean,  74  Me.  340.  See,  also, 
Peters  v.  Caitier,  80  Mich.  124;  20  Am.  St.  Rep.  508;  Eaton  v.  Trow- 
bridge, 38  Mich.  454;  Johnson  v.  Williams,  37  Kan.  179;  1  Am.  St.  Rep. 
243;  Ulley  v.  Fee,  33  Kan.  683;  Merrill  v.  Hutchinson,  45  Kan.  59;  23 
Am.  St.  Rep.  713;  Hutchinson  v.  Hartman,  15  Kan.  133;  Young  v.  Clip- 
pinger,  14  Kan.  148;  Goddard  v.  Donaha,  42  Kan.  754;  Hoyt  v.  Schuyler, 
19  Neb.  652;  Gress  v.  Evans,  1  Dak.  387;  46  N.  W.  Rep.  1132;  Snow  v. 
Lake,  20  Fla.  656;  51  Am.  Rep.  625;  McAdow  v.  Black,  6  Mont.  601;  13 
Pac.  Rep.  377 ;  American  Mortgage  Co.  v.  Hutchinson,  19  Or.  334 ;  Baker 
V.  Woodward,  12  Or.  3;  Bragg  v.  Paulk,  42  Me.  502;  Meikel  v.  Borders, 
129  Ind.  529;  Leland  v.  Isenbeck,  1  Idaho,  469;  Parker  v.  Randolph,  5 
S.  D.  549;  59  N.  W.  Rep.  722. 


907  EEGISTRATION    OF    DEEDS.  §   672 

estate,  or  an  interest  in  real  estate,  can  be  aliened  or 
assigned  by  a  quitclaim  deed.  To  alien  or  alienate 
means  simpl}^  to  convey  or  transfer  title  to  another.  In 
this  State,  from  tlie  earliest  times,  quitclaim  deeds  have 
been  in  everj^-day  use  for  the  purpose  of  transferring 
title  to  land,  and  have  been  considered  as  effectual  for 
that  purpose  as  deeds  of  bargain  and  sale.  It  is  true, 
they  transfer  only  such  interest  as  the  seller  then  has,  and 
do  not  purport  to  convey  the  property  in  fee  simple  abso- 
lute, so  as  to  pass  an  after-acquired  title,  but  to  the  extent 
the  seller  has  an  interest,  they  divest  him  of  it  and  vest  it 
in  the  purchaser.  We  consider,  therefore,  that  a  quit- 
claim deed  received  in  good  faith  and  for  a  valuable  con- 
sideration, which  is  first  recorded,  will  prevail  over  a  deed 
of  older  execution  which  is  subsequently  recorded." ' 
This  view  was  also  at  an  early  day  adopted  in  Illinois. 
"Prior  to  the  passage  of  the  statutes  made  for  the  purpose 
of  facilitating  the  manner  of  transferring  lands,  it  was 
essential  to  the  operation  of  a  deed  of  release  that  the 
grantee  should  have  some  estate  or  interest  in  the  land 
released;  but  many  of  the  subtle  distinctions  and  cere- 
monious forms  peculiar  to  the  ancient  modes  of  transfer- 
ring titles  are  abolished,  and  the  policy  of  the  law  now 
requires  that  we  should  look  rather  to  the  intention  of 

^  In  Graff  v.  Middleton,  43  Cal.  341.  This  case  was  subsequently  ap- 
proved in  Frey  v.  Clifford,  44  Cal.  335,  343.  See,  also,  Willingham  v. 
Hardin,  75  Mo.  429;  Boogher  v.  Neece,  75  Mo.  383.  In  the  case  of  Al- 
lison V.  Thomas,  72  Cal.  5fi2,  1  Am.  St.  Rep.  89,  the  court  while  recog- 
nizing the  rule  stated  as  the  correct  principle  in  view  of  the  language  of 
the  recording  act  in  force  when  the  cases  were  decided,  says :  "Unless 
these  cases  are  justified  by  the  peculiar  wording  of  the  statute,  they  seem 
to  be  ajiainst  the  decisions  elsewhere  upon  the  subject.  It  has  been  uni- 
formly held  that  a  conveyance  of  the  right,  title,  and  interest  of  the 
grantor  vests  in  the  purchaser  only  what  the  grantor  himself  could 
claim,  and  the  covenants  in  such  deed,  if  there  were  any,  were  limited 
to  the  estate  described."  In  that  case  the  court  held  that  a  quitclaim 
deed  conveyed  to  the  purchaser  only  what  the  grantor  could  liimself 
claim,  and  that  the  only  exceptions  to  the  rule  were  based  upon  the 
registry  laws,  or  were  sales  made  under  execution.  See,  also,  Si)aald- 
ing  V.  Bradley,  79  Cal.  449;  Thompson  v.  Spencer,  50  Cal.  532;  Kego  v. 
Van  Pelt,  65  Cal.  254. 


§   072  REGISTRATION    OP    DEEDS.  908 

the  parties  than  to  the  form  in  which  it  is  expressed.  A 
deed  of  release  and  quitclaim  is  as  effectual  for  the  pur- 
pose of  transferring  title  to  land  as  a  deed  of  bargain  and 
sale;  and  the  prior  recording  of  such  deed  will  give  it  a 
preference  over  one  previously  executed,  but  which  was 
subsequently  recorded.  In  this  respect  there  is  no  distinc- 
tion between  different  forms  of  conveyance.  As  a  general 
rule,  the  one  first  recorded  must  prevail  over  one  of  older 
execution,  when  made  in  good  faith,  and  when  it  appears  to 
have  been  the  intention  of  the  parties  to  convey  again  the 
same  lands  which  had  been  previously  conveyed."^  In  a 
recent  case  in  Mississippi,  the  cases  are  reviewed  by  Mr. 
Justice  Campbell  at  considerable  length,  and  as  the  result 
of  his  examination,  he  says:  "We  conclude  that  there  is 
no  authority  for  the  proposition  that  a  quitclaim  deed  in 
the  chain  of  title  deprives  him  who  claims  under  it  of  the 
character  of  a  bona  fide  purchaser.  There  are  dicta  and 
suggestions  and  inferences  to  that  effect.  But  we  deny 
and  repudiate  the  proposition  as  unsound  and  insupport- 
able on  authority,  principle,  or  policy.  We  concede  that 
under  some  circumstances  a  quitclaim  deed  may  be  a 
'  significant  circumstance,'  in  the  consideration  of  a  com- 
bination of  circumstances  of  which  it  may  be  a  part,  but 
this  is  the  greatest  force  it  can  possibly  have  in  any 
case."^     The    rule  that  a  purchaser  under  a  quitclaim 

1  McConnel  v.  Reed,  4  Scam.  (5  111.)  117,  121;  38  Am.  Dec.  124,  per 
Chief  Justice  Wilson.  And  to  the  same  effect  see  Brown  v.  Banner  Coal 
and  Oil  Co.,  97  111.  214;  37  Am.  Rep.  105;  Kennedy  v.  Northup,  15  111. 
148;  Morgan  v.  Clayton,  61  111.  35;  Hamilton  v.  Doolittle,  37  111.  473; 
Harpham  v.  Little,  59  111.  509;  Butterfield  v.  Smith,  11  111.  485;  Brady 
D.  Spurck,  27  111.  478;  Grant  v.  Bennett,  96  111.  513;  Fox  v.  Hall,  74  Mo. 
315;  41  Am.  Rep.  316;  White  v.  McGarry,  2  Flipp.  C.  C.  572.  The  title 
of  a  purchaser  under  a  quitclaim  deed  without  notice  will  prevail  over 
that  given  by  an  unrecorded  deed :  Merrill  v.  Hutchinson,  45  Kan.  59 ; 
23  Am.  tit.  Rep.  713. 

^  Chapman  v.  Sims,  53  Miss.  163.  The  court,  in  that  case,  in  discuss- 
ing that  question,  said:  "The  deed  from  McPherson  to  Sims  is  a  mere 
quitclaim  deed,  and  it  is  said  that,  as  there  is  such  a  deed  in  the  chain 
of  Anderson's  title,  he  cannot  be  held  to  occupy  the  position  of  a  bona 
fide  purchaser.  The  cases  cited  in  support  of  this  legal  proposition  are : 
Smith  V.  Winston,  2  How.  (Miss.)  601;  Kerr  v.  Freeman,  33  Miss.  292; 
Learned  v.  Corley,  43  Miss.  687;  Oliver  v.  Piatt,  3  How,  333,  410;  May 


909  REGISTRATION    OF    DEEDS.  §  672 

deed  is  entitled  to  the  character  of  a  bona  fide  purchaser 
prevails  in  many  States.^ 

V.  Le  Claire,  11  Wall.  217,  232;  Woodfolk  v.  Blount,  3  Havw.  (Tenn.) 
147.  In  Smith  v.  Winston,  the  point  under  consideration  was,  whether 
the  failure  of  consideration  could  be  set  up  by  a  vendee  under  deed 
without  covenants  of  warranty,  as  a  defense  to  the  recovery  of  the  pur- 
chase money  he  had  promised.  It  would  seem  that  to  suggest  the  ques- 
tion was  to  indicate  the  proper  answer  to  it ;  but  the  learned  judge 
delivering  the  opinion,  discussed  the  question  at  length,  and  among 
many  other  things  said :  'In  a  quitclaim  deed,  the  party  does  nothing 
more  than  to  acquit  the  grantee  from  any  title  or  right  of  action  which  he 
may  have ;  and  the  fact  of  taking  nothing  more  than  a  quitclaim  would, 
in  general,  imply  a  knowledge  of  doubtful  title.'  Again,  he  remarked : 
'The  law  seems  to  be  well  settled  that  a  purchaser  without  covenants 
takes  all  the  risk  of  title.'  The  remark  last  quoted  was  pertinent,  and 
all  that  was  necessary  to  dispose  of  the  point.  It  is  indisputable  that  a 
purchaser  without  covenants  takes  all  the  risk  of  title,  so  far  as  any 
right  to  call  on  his  vendor  to  indemnify  him  for  a  failure  of  title  is 
involved.  We  are  not  able  to  perceive  the  appropriateness  of  the 
above-quoted  statement,  that  'the  fact  of  taking  nothing  more  than 
a  quitclaim  would,  in  general,  imply  a  knowledge  of  doubtful  title.' 
Knowledge,  or  want  of  it,  could  in  no  way  affect  the  question  being 
discussed.  It  was  not  the  case  of  one  claiming  as  a  bona  fide  pur- 
chaser. That  case  is  not  an  authority  in  support  of  the  proposition  for 
which  it  has  been  invoked.  The  case  of  Kerr  v.  Freeman  is  that  of  a 
complainant  claiming  land  under  a  quitclaim  deed,  seeking  the  cancella- 
tion of  certain  deeds  operating  as  clouds  on  his  title.  The  judj:e  deliv- 
ering the  opinion,  speaking  of  the  complainant's  quitclaim  deed,  said: 
'His  deed  merely  shows  a  doubtful  title  ' ;  but  it  was  not  said  that  be- 
cause the  complainant  held  under  a  quitclaim,  he  could  not  maintain 
his  bill.  On  the  contrary  the  question,  'whether  the  decree  is  sustained 
by  the  evidence  in  the  cause,'  was  minutely  discussed,  and  the  conclu- 
sion announced  that  it  was  insufficient  to  warrant  the  decree.  If  it  be 
true,  as  a  legal  proposition,  that  a  title  evidenced  only  by  a  quitclaim 
deed  is  not  sufficient  to  support  a  claim  to  have  clouds  removed  from  it, 

1  Woodward  v.  Sartwell,  129  Mass.  210;  Dow  v.  Whitney,  147  Mass. 
1;  Mansfield  v.  Dyer,  131  Mass.  200;  Kyle  v.  Kavanagh,  103  Mass.  356; 
4  Am.  Rep.  560;  Cutler  v.  James,  64  Wis.  173;  54  Am.  Rep.  603;  Far- 
yason  v.  Edrington,  49  Ark.  207;  Munson  v.  Ensor,  94  Mo.  504:  Hope  v 
Blair,  105  Mo.  85;  24  Am.  St.  Rep.  366;  Craig  v.  Zimmerman,  87  Mo. 
47'>;  56  Am.  Rep.  466;  Ebersole  v.  Rankin,  102  Mo.  488;  Eoff  v.  Irvine, 
108  Mo.  378;  32  Am.  St.  Rep.  609;  Ely  v.  Stannard,  44  Conn.  528;  Pot- 
ter v.  Tuttle,  22  Conn.  512;  Bradbury  v.  Davis,  5  Colo.  265.  In  some 
cases  the  fact  that  a  purchaser  has  taken  a  quitclaim  deed  has  been  con- 
Bidered  a  circumstance  tending  to  show  notice  on  his  part:  Gaines  v. 
Summers,  50  Ark.  322;  Bagley  v,  Fletcher,  44  Ark.  153;  Miller  v.  Fra- 
ley,  23  Ark.  735. 


§  673  REGISTRATION    OF    DEEDS.  910 

§  673.     Comments. — We  think  that  it  is  unreasonable 
to  deprive  a  purchaser  under  a  quitclaim  deed  of  the 

the  announcement  of  that  proposition  was  enough  to  dispose  of  the  case, 
and  render  an  examination  of  the  evidence  unnecessary.  This  case  is 
not  an  autliority  for  the  proposition  that  a  vendee  by  quitclaim  cannot 
be  regarded  as  a  bona  fide  purchaser.  Learned  v.  Coriey  contains  this 
expression:  'A  quitclaim  deed  implies  a  doubtful  title.'  But  that  was 
not  pronounced  sufficient,  of  itself,  to  deprive  the  grantee  of  his  claim  to  be 
a  bona  fide  purchaser.  It  seems,  rather,  to  have  been  treated  as  a  signifi- 
cant circumstance  in  the  history  of  the  case  fit  to  be  considered,  with 
other  circumstances,  all  of  which  combined  were  held  to  deprive  the  holder 
of  his  claim  as  a  purchaser  in  good  faith.  In  Oliver  v.  Piatt,  this  language 
is  found:  "Another  significant  circumstance  is,  that  this  very  agree- 
ment contained  a  stipulation  that  Oliver  should  give  a  quitclaim  deed 
only  for  the  tracts;  and  the  subsequent  deeds  given  by  Oliver  to  him, 
accordingly,  were  drawn  up  without  any  covenants  of  warranty,  except 
against  persons  claiming  under  Oliver,  or  his  heirs  and  assigns.  In  legal 
effect,  therefore,  they  did  convey  no  more  than  Oliver's  right,  title,  and 
interest  in  the  property ;  and  under  such  circumstances  it  is  difficult  to 
conceive  how  he  can  claim  protection  as  a  bona  fide  purchaser,'  etc.  It 
is  observable  that  the  quitclaim  deed,  in  pursuance  of  a  previous  stipu- 
lation for  such  a  one,  was  declared  to  be  a  'significant  circumstance,'  in 
connection  with  others,  in  themselves  sufficient,  to  deprive  the  grantee 
of  his  claim  to  be  treated  as  a  bona  fide  purchaser.  The  quitclaim  deed 
.  is  not  pronounced  to  be  per  se  enough  to  rob  its  holder  of  the  character 
of  a  bona  fide  purchaser.  In  May  v.  Le  Claire  this  language  is  used : 
The  evidence  satisfies  us  that  Cook  had  full  notice  of  the  frauds  of 
Powers,  and  of  the  infirmities  of  Dessaint's  title.  Whether  this  were 
so  or  not,  having  acquired  his  title  by  a  quitclaim  deed,  he  cannot  be 
regarded  as  a  bona  fide  purchaser  without  notice.  In  such  cases,  the 
conveyance  passes  the  title  as  the  grantor  held  it,  and  the  grantee  takes 
only  what  the  grantor  could  lawfully  convey.'  And  Oliver  v.  Piatt,  3 
How.  333,  is  referred  to  in  support  of  the  proposition.  No  other  author- 
ity is  cited.  After  declaring  'that  Cook  had  full  notice  of  the  frauds  of 
Powers,  and  of  the  infirmities  of  Dessaint's  title,'  it  was  surely  unneces- 
sary to  say  more,  and  the  remark  about  the  quitclaim  deed  is  as  perfect  a 
specimen  of  an  obiter  dictum  as  the  books  afford.  We  have  above  shown 
that  the  single  case  cited  in  support  of  this  dictum  merely  treated  the  quit- 
claim in  that  case  as  a  'significant  circumstance,'  and  did  not  announce 
that  it  alone  was  in  itself  a  bar  to  the  claim  to  be  a  bona  fide  purchaser. 
In  Woodfolk  v.  Blount,  the  court  hesitatingly  and  doubtfully  suggested 
that,  perhaps  'the  vendee  in  all  cases,  when  he  receives  but  a  special 
warranty  or  quitclaim  conveyance,  takes  the  estate  subject  to  all  the 
disadvantages  that  it  was  liable  to  in  the  hands  of  the  vendor,  and  the 
law  will  presume  notice  of  all  encumbrances,  either  legal  or  equitable. 
The  circumstance. of  a  vendor  refusing  to  make  a  full  and  ordinary  as- 
surance is  sufficient  to  excite  suspicion,  and  put  the  party  upon  inquiry.' 
Not  a  single  authority  is  referred  to,  except  cases  on  the  subject  of  '  in- 


911  EEGISTRATION    OF    DEEDS.  §  673 

benefits  of  the  registration  laws.  A  conveyance  of  this 
character  is  sufficient  to  convey  all  the  title  the  grantor 
possesses  at  the  time  of  its  execution.  If  he  has  already 
executed  a  prior  conveyance,  a  subsequent  grantee,  whether 
by  a  quitclaim  deed,  or  a  deed  containing  every  covenant, 
can  acquire  no  title  unless  it  be  by  virtue  of  some  principle 
of  estoppel,  or  by  force  of  some  positive  provision  of  the 
statute,  relative  to  registration.  There  is,  to  our  mind,  no 
force  in  the  argument  that  a  purchaser  by  a  quitclaim 
deed  can  succeed  to  no  rights  save  those  possessed  by  his 
grantor.  The  same  is  true  of  a  purchaser  under  any  other 
kind  of  a  deed.  The  latter  succeeds  by  the  conveyance 
only  to  the  title  of  the  grantor,  although  he  may  be  enti- 
tled to  the  benefit  of  the  subsequent  title  of  his  grantor 
by  operation  of  the  doctrine  of  estoppel,  and  may  have  a 
right  to  resort  to  his  grantor  on  the  covenants  contained 
in  the  deed  for  any  breach  of  or  defect  in  the  title  he  has 
purcliased.  Nor  should  the  fact  that  a  purchaser  accepts 
a  quitclaim  be  regarded,  in  our  judgment,  as  a  "signifi- 
cant circumstance,"  in  charging  him  with  notice  of  a  prior 
or  paramount  title.  Mr.  Rawle  very  properly  says  with 
reference  to  this  suggestion:  "But  there  would  appear 
to  be  equal  reason  for  the  opposite  argument,  that  a 
deed  with  general  warranty  was  as  significant  a  circum- 
stance—  that  unless  there  had  been  something  wrong 
about  the  title,  the  purchaser  would  not  liave  demanded 
a  general  covenant,  and  that  he  intended  to  run  the 
risk  of  the  defect,  and  rely  upon  the  covenant  for  his  pro- 
tection. In  the  absence  of  local  usage  it  would  seem  that 
no  presumption  of  notice  can  properly  arise,  either  from 

dorsoment  of  a  bill  without  recourse  after  it  is  due,'  which  hold  that  the 
indorsee  takes  subject  to  all  equities.  The  language  immediately 
afterward  used  in  the  opinion  is :  '  The  principles  in  relation  to 
conveyances  of  real  property  witli  special  warranty,  perhaps,  will  be 
found  equally  applicable.  However,  it  is  not  neces.-ary  to  give  a  positive 
oi)inion  on  this  subject.'  It  is  just  to  assume  that  the  judge  delivering 
that  opinion  would  have  cited  some  text-book  or  adjudication,  if  he 
could  have  found  one  to  sustain  the  view  he  expressed.  His  citation  of 
cases  of  indorsements  of  bills  after  maturity  shows  his  anxiety  on  the 
Bubject,  and  suggests  hia  inability  to  find  any  authority  iu  point." 


§  673  REGISTRATIOij    OP    DEEDS.  912 

the  absence  or  presence  of  unlimited  covenants,  and  where 
it  is,  as  some  of  the  cases  say,  the  invariable  usage  in  a 
State  to  insert  general  covenants,  the  presence  in  the  deed 
of  limited  covenants  is  only  a  ground  of  presumption  of 
mutual  knowledge,  or  at  least,  of  suspicion,  of  some  defect 
of  title."  ^  The  theory  of  the  registry  laws  is  that  the 
records  truly  disclose  the  state  of  every  title.  If  an  in- 
tending purchaser,  after  a  careful  examination  of  the 
records,  finds  the  legal  title  lodged  in  his  grantor,  and  has 
no  actual  notice  of  any  outstanding  claim,  and  obtains  all 
of  his  grantor's  interest,  why  should  his  right  to  prece- 
dence over  a  prior  unrecorded  conveyance  of  which  he 
had  no  notice  depend  upon  the  form  of  his  deed?  Quit- 
claim deeds  in  many  States  are  not  unusual  forms  of  con- 
veyance. The  grantor  may  have  the  best  of  reasons  for 
not  desiring  to  execute  a  deed  with  covenants,  or  even  to 
agree,  impliedly,  that  the  grantee  shall  succeed  to  any 
title  the  former  may  subsequently  acquire.  The  grantee 
may  be  thoroughly  satisfied  with  the  validity  of  the  grant- 
or's title,  and  may,  in  his  confidence,  consider  himself 
fully  protected  by  acquiring  that  title  without  the  exaction 
of  covenants  for  his  reparation  in  case  of  its  failure.  The 
fact  that  his  deed  contains  no  covenants,  and  that  the 
grantor  conveys  to  him  nothing  but  his  title,  should  not, 
in  our  opinion,  be  entitled  to  consideration  in  the  deter- 
mination of  the  question  whether  he  is  to  be  regarded  as 
a  bona  fide  purchaser  or  not.  This  question  should  be 
decided  with  reference  to  other  considerations,  as  want  of 
consideration  or  purchase  with  notice.  It  might,  perhaps, 
as  a  question  of  evidence,  on  the  issue  of  notice,  be  con- 
ceded that  a  party  should  be  permitted  to  show,  that  one 
of  the  reasons  why  the  grantee  took  a  quitclaim  deed  was 
because  both  he  and  the  grantor  were  aware  of  a  prior 
conveyance,  or  a  defect  in  the    title.     But,  as   we    have 

'■  Eawle  on  Covenants  (4th  ed.)  35,  36,  citing  Miller  v.  Fraley,  23  Ark. 
743 ;  Lowry  v.  Brown,  1  Cold.  459.  That  the  taking  of  a  quitclaim  deed 
may  be  a  circumstance  bearing  on  the  question  of  notice,  see  Knapp  v. 
Bailey,  79  Me.  195;  1  Am.  St.  Rep.  295;  Mansfield  v.  Dyer,  131  Mass. 
200. 


913  REGISTRATION    OF    DEEDS.  §  674 

stated,  we  can  see  no  reason  for  the  doctrine  that  a  quit- 
claim deed  should,  of  itself,  aside  from  any  other  suspi- 
cious circumstance,  be  sufScient  to  deprive  its  holder  of 
occupying  the  character  of  a  bona  fide  purchaser. 

§  674.  Intention  In  quitclaim  to  pass  grantor's  inter- 
est only. — But  even  in  the  States  where  a  quitclaim  deed 
is  recognized  as  an  effectual  mode  of  transferring  the  title 
of  the  grantor,  and  is  accorded  the  same  privileges  under 
the  registry  law  as  a  deed  of  bargain  and  sale,  yet  if  it 
appears  by  the  deed  of  quitclaim  that  the  grantor  intended 
to  convey  only  such  land  as  he  owned  at  the  time  of  its 
execution,  the  lands  embraced  in  a  prior  operative  con- 
veyance are  reserved  from  the  operation  of  the  quitclaim 
deed,  and  title  to  such  previously  conveyed  lands  will  not 
pass  by  the  deed  of  quitclaim,  notwithstanding  that  the 
prior  deed  remains  unrecorded.  As  an  illustration  of  this 
principle  a  case  may  be  cited  where  the  description  of  the 
property  intended  to  be  conveyed  by  the  quitclaim  deed 
was:  "All  lots,  blocks,  lands,  and  fractional  blocks,  or  any 
interest  therein,  in  the  town  of  Pekin,  county  of  Tazewell, 
State  of  Illinois,  that  I  have;  also,  all  my  right  and  inter- 
est, or  in  anywise  appertaining,  together  with  the  right 
of  ways.  This  deed  is  intended  to  convey  all  the  interest 
the  said  Peter  Menard  has  in  the  town  of  Pekin,  now  city, 
in  said  county."  The  court  held  that  this  language  em- 
braced only  such  land  as  the  grantor  owned  at  the  time 
of  the  execution  of  the  deed.^  The  court  said:  "The  lan- 
guage used  clearly  manifests  the  intention  of  the  grantor 
to  limit  the  operation  of  the  conveyance  to  such  lands  as 
he  then  owned,  and  the  title  to  which  was  still  in  him. 
Whilst  a  quitclaim  deed  is  as  effectual  to  pass  title  as  a 
deed  of  bargain  and  sale,  still  it,  like  all  other  contracts 
and  agreements,  must  be  expounded  and  enforced  accord- 
ing to  the  intention  of  the  parties.  In  this  deed  the  in- 
tention of  Menard  appears  to  have  been  to  sell  such  lands 

'  Hamilton  v.  Doolittle,  37  111.  473.    See,  also,  Pleasants  v.  Blodgett, 
89  Neb.  741 ;  42  Am.  St.  Rep.  624;  58  N.  W.  Eep.  423. 
Dekds,  Vol.  n.  —  58 


§   074  REGISTRATION    OF    DEEDS.  914 

only  as  had  not  been  conveyed  by  him  to  other  parties 
previous  to  that  tinie."^  A  grantor  conveyed  land,  spe- 
cifically describing  himself  as  the  devisee  of  Alexander 
Skinner,  by  whom  the  land  was  owned  in  his  lifetime. 
By  a  subsequent  deed,  which  was  first  recorded,  he  con- 
veyed to  another  "all  the  right,  title,  and  claim  which  he, 
the  said  Alexander  Skinner,  had,  and  all  the  right,  title^ 
and  interest  which  the  said  Loe  [grantor]  holds  as  legatee 
and  representative  to  said  Alexander  Skinner,  deceased, 
of  all  lands  lying  and  being  in  the  State  of  Kentucky, 
which  cannot  at  this  time  be  particularly  described, 
whether  they  be  by  deed,  patent,  mortgage,  survey,  loca- 
tion, contract,  or  otherwise."  The  deed  also  contained  a 
covenant  against  all  persons  claiming  under  the  grantor, 
his  heirs  and  assigns.  The  court  held  that  the  latter  con- 
veyance operated  only  upon  the  lands  and  the  interest 
which  he  possessed  at  its  execution,  and  therefore  could 
not,  by  a  prior  registration,  obtain  precedence  over  or  de- 
feat the  operation  of  the  first  deed,  by  which  the  same 
land  was  specifically  conveyed.'' 

*  Chief  Justice  "Walker,  in  Hamilton  v.  Doolittle,  supra. 

*  Brown  v.  Jackson,  3  Wheat.  449.  Mr.  Justice  Todd  delivered  the 
opinion  of  the  court,  and  said:  "A  conveyance  of  the  right,  titP,  and  in- 
terest in  land  is  certainly  sufficient  to  pass  the  land  itself,  if  the  party 
conveying  has  an  estate  therein  at  the  time  of  the  conveyance;  but  it 
passes  no  estate  which  was  not  then  possessed  by  the  party.  If  the 
deed  to  Banks  had  stopped  after  the  words  'all  the  right,  title,  and 
claim  which  Alexander  Skinner  had,'  there  might  be  strong  ground  to 
contend  that  it  embraced  all  the  lands  to  which  Alexander  Skinner  had 
any  right,  title,  or  claim,  at  the  time  of  his  death,  and  thus  have  in- 
cluded the  lands  in  controversy.  But  the  court  is  of  the  opinion  that 
those  words  are  qualified  by  the  succeeding  clause,  which  limits  the 
conveyance  to  the  right,  title,  and  claim  which  Alexander  Skinner  hud  at 
the  time  of  his  decease,  and  which  Lee  also  held  at  the  time  of  his  convey- 
ance, and  coupling  both  clauses  together,  the  conveyance  operated  only 
upon  lands,  the  light,  title,  and  interest  of  which  was  then  in  Lee,  and 
which  he  derived  from  Skinner.  This  construction  is,  in  the  opinion  of 
the  court,  a  reasonable  one,  founded  on  the  apparent  intent  of  the 
parties,  and  corroborated  by  the  terms  of  the  covenant  of  warranty. 
TJpon  any  other  construction,  the  deed  must  be  deemed  a  fraud  upon 
the  prior  purchaser;  but  in  this  way  both  deeds  may  well  stand  together 
consistent  with  the  innocence  of  all  parties."  A  general  covenant  of 
warranty  is  limited  by  words  conveying  only  the  right,  title,  and  inter- 


915  REGISTRATION    OF    DEEDS.  §  675 

§  675.  Another  illustration. — The  same  construction 
was  given  to  anotlier  deed,  wliich  was  in.  tlie  usual  form 
of  a  quitclaim  deed,  conveying  all  the  riglit,  title,  and 
interest  of  the  grantor  in  certain  lands,  but  after  the  de- 
scription contained  the  clause:  "Intending  to  convey 
such  only  as  are  now  owned  by  said  Walker,  and  not  any 
that  may  have  been  conveyed  to  anyone  else."  "  Such  a 
deed,"  said  Mr.  Justice  Trumbull,  "is  just  as  effectual 
for  the  purpose  of  transferring  real  estate  as  a  deed 
of  bargain  and  sale;  and  had  there  been  no  words 
in  the  deed  under  consideration,  showing  an  intention 
on  the  part  of  the  grantor  not  to  convey  the  land  in 
question,  there  can  be  no  doubt  that  the  plaintiff  would 
have  been  entitled  to  recover.  The  deed,  however,  con- 
tains a  clause  showing  that  the  grantor  did  not  transfer 
by  it  any  interest  in  lands  which  he  had  previously  con- 
veyed. It  was  competent  for  the  grantor  to  insert  such  a 
limitation  in  the  deed;  and  the  grantee,  by  accepting 
such  a  deed,  is  bound  by  all  the  limitations  it  contains. 
The  intention  of  the  parties  is  the  polar  star  by  which 
courts  are  always  to  be  guided  in  the  construction  of  con- 
tracts; and  can  there  be  any  question  that  Walker  did  not 
intend  by  his  quitclaim  deed  to  convey  any  land  which 
he  did  not  then  own,  or  which  might  have  been  conveyed 
to  anyone  else,  when  he  has  expressed  that  intention  in 
the  deed  itself,  as  clearly  as  language  could  make  it?  It 
is  clear,  therefore,  that  no  interest  in  the  land  in  ques- 
tion passed  by  the  quitclaim  deed,  because  Walker  had 
previously  conveyed  the  same  land  to  Taylor  and  others. 
He  says  that  it  was  his  intention  to  convey  only  such 
lands  described  in  the  quitclaim  deed  as  he  then  owned, 
and  his  ownership  over  the  land  in  controversy  was  as 
effectually  parted  with,  as  to  him,  as  it  would  have  been 
if  Taylor  and  others  had  immediately  placed  their  deed 
uj)on    record.     To  construe  the  clause    under  considera- 

€8t  of  the  f,Tantor :  Reynolds  v.  Shaver,  59  Ark.  299;  43  Am.  St.  Rep.  36; 
Hull  V.  Hull,  35  VV.  Va.  155;  29  Am.  bt.  Eep.  800.  See,  also,  §  27, 
ante,  and  §  931,  post. 


§  676  KEGISTRATION    OP    DEEDS.  916 

tiou  as  extending  only  to  such  lands  as  Walker  had  pre- 
viously conveyed  to  persons  who  had  put  their  deeds 
upon  record,  would  be  to  give  it  no  meaning  whatever. 
His  second  conveyance  could  in  no  way  affect  their  rights. 
It  is  probable  that  Walker,  being  at  the  time  a  large  op- 
erator in  lands,  did  not  precisely  recollect  what  tracts  he 
had  sold,  and  hence  inserted  a  clause  in  his  quitclaim 
deed  that  would  protect  all  who  had  purchased  from  him, 
whether  their  deeds  were  recorded  or  not,  even  though 
he  should  make  a  second  conveyance  of  the  same  land."^ 

§  676.  Reservation  in  quitclaim  deed  as  affecting'  a 
prior  void  or  voidable  deed. — But  although  a  quitclaim 
deed  may  show  by  proper  words  of  reservation  that  the 
grantor  did  not  intend  to  convey  lands  previously  trans- 
ferred by  him,  yet  it  is  held  that  a  prior  void  deed  is  not 
within  such  a  reservation,  and  that  a  subsequent  quit- 
claim deed,  with  a  reservation  of  this  nature,  will  pass 
the  title  as  against  the  prior  conve3^ance.^  "By  fair  con- 
struction, the  language  must  be  restricted  to  previous 
conveyances,  legally  executed,  and  operative  as  such.  A 
conveyance  void  under  the  law,  or  even  voidable,  at  the 
time  of  executing  the  subsequent  conveyance,  could  not 
be  held  to  be  embraced  within  the  reservation.  It  not 
unfrequently  happens,  that  the  subsequent  deed  is  de- 
signed to  avoid  a  prior  deed  which  the  grantor  has  the 
legal  right  to  avoid,  and  such  conveyances  are  upheld  as 
binding,  and  sufficient  to  pass  the  title.  Again,  the  lan- 
guage should  be  restricted  so  as  not  to  embrace  any  con- 
veyance which  is  so  imperfectly  executed  that  the  law 
will  refuse  to  give  it  effect  as  a  conveyance  of  title.  If  it 
has  been  so  executed  that  it  cannot  be  proved  so  as  to  be 
admitted  in  evidence  as  a  conveyance,  it  cannot  have 
effect,  and  cannot  be  held  to  constitute  a  conveyance. 
If,  from  want  of  proof,  or  from  other  defect,  it  cannot  be 

1  Butterfield  v.  Smith,  11  111.  485,  486.  See  Harpham  v.  Little,  59111. 
509;  Allison  v.  Thomas,  72  Oal.  562;  Coe  v.  Persons  Unknown,  43  Me. 
432;  Nash  v.  Bean,  74  Me.  340;  Walker  v.  Lincoln.  45  Me.  67. 

»  Hamilton  v.  Doolittle,  37  111.  473. 


917  REGISTRATION    OF    DEEDS.  §  677 

used  in  the  assertion  of  the  right  to  hold  the  title,  it  can- 
not be  said  to  be  a  conveyance  of  the  title  to  the  land. 
In  such  a  case,  the  legal  title  does  not  pass  from  the 
vendor,  but  remains  in  him  at  the  time  the  subsequent 
conveyance  is  made,  and  falls  fully  within  the  operation 
of  the  language  of  such  a  deed."  ^ 

§  677.  Record  partly  printed.  —  The  law  is  satisfied 
if  the  record  contains  a  true  copy  of  the  instrument  to 
be  recorded.  The  record  of  a  conveyance  is  not  defective, 
because,  instead  of  being  entirely  written,  a  portion  of  it 
is  printed.  The  statute  of  Wisconsin  requires  that  in- 
struments shall  be  recorded  "  in  a  plain  and  distinct 
handwriting."^  A  book  in  which  a  mortgage  was  re- 
corded was  composed  of  printed  blanks  in  the  form  of 
farm  mortgages.  When  a  mortgage  of  this  kind  was  re- 
corded, the  blanks  were  filled  in,  and  this  was  the  only 
handwriting  shown  by  the  record.  It  was  declared  by 
statute  in  that  State  that  "  the  words  '  written'  and  'in  writ- 
ing,' may  be  construed  to  include  printing,  lithographing, 
and  any  other  mode  of  representing  words  and  letters.'" 
The  court  held  that  the  objection  that  a  part  of  the  rec- 
ord was  printed  was  invalid.*  "There  is  no  claim  that 
this  copy  of  the  record  was  not  complete  and  perfect. 
We  cannot  hold  that  this  record  is  defective  because  a 
portion  of  it  is  printed.  Certainly  a  printed  record  is  as 
effective  to  protect  bona  fide  purchasers  as  one  wholly  in 
writing.  It  is  also  just  as  beneficial  to  parties  and  those 
in  privity  with  them.  The  objects  of  the  recording  acts 
are  as  fully  complied  with  by  a  printed  as  by  a  written  rec- 
ord.    There  is  no  question  but  that  the  book  in  which 

^  Hamilton  v.  Doolittle,  supra.  A  quitclaim  deed  will  not  cut  oS 
equities  arising  from  transactions  not  required  to  be  in  writing  or  re- 
corded: Hope  V.  Blair,  105  Mo.  85;  24  Am.  St.  Rep.  366;  Mann  v.  Best, 
62  Mo.  497;  Rid<,'eway  v.  Holliday,  59  Mo.  444;  Stoffei  v.  Schroeder,  62 
Mo.  147;  Muiison  v.  Elisor,  94  Mo.  506. 

»  Rev.  Stats.  §  758,  eubd.  2. 

»  Rev.  Stats.  §  4971,  subd.  19. 

*  Maxwell  v.  Hartmann,  50  Wis.  660. 


§§  678,  679  REGISTRATION    OF    DEEDS.  918 

the  record  was  made  was  a  part  of  the  public  records  in 
the  register's  office  of  Ozaukee  county."^ 

§  678.  Interest  of  recor  ling'  officer. — The  registra- 
tion of  a  deed  is  purely  a  ministerial  act.  Tlie  record  is 
not  vitiated  by  the  fact  that  the  clerk  by  whom  it  is  re- 
corded is  a  party  to  the  instrument.^ 

§  679,      Time  at  which   deed  is  held  to  he  recorded. — 

The  statute  may  prescribe  that  the  depositing  of  a  deed 
within  a  specified  period  shall  have  a  retroactive  effect,  so 
that  its  registration  may,  when  it  is  filed  within  this  lim- 
ited time,  relate  back  to  the  time  of  its  execution.  In 
many  States  it  is  expressly  provided  that  a  deed  is  con- 
sidered as  recorded  at  the  time  it  is  filed  for  record.  In 
the  absence  of  legislation  on  the  subject,  it  is  generally 
conceded,  so  far  as  the  question  of  priority  and  kindred 
questions  are  concerned,  that  a  deed  is  considered  in  law 
to  be  recorded  at  the  time  at  which  it  is  deposited  with 
the  proper  officer  for  registration.^     "When  a  deed,"  said 

'  Mr.  Justice  Cassoday,  in  Maxwell  v.  Hartmann,  supra. 

2  Brockeuborough  v.  Melton,  55  Tex.  493 ;  Tessier  v.  Hall,  7  Mart. 
(La.)  411. 

3  Cal.  Civil  Code,  §  1170;  Kesler  v.  State,  24  Ind.  315;  Harrold  v.  Si- 
monds,  9  Mo.  326 ;  Mallory  v.  Stodder,  6  Ala.  801 ;  Poplin  v.  Mundell, 
27  Kan.  138;  Dubose  v.  Young,  10  Ala.  365;  Horsley  v.  Garth,  2  Gratt. 
471;  44  Am.  Dec.  393;  Deming  v.  Miles,  35  Neb.  739;  37  Am.  St.  Rep. 
464;  Perkins  v.  Strong,  22  Neb.  725;  Sinclair  v.  Slawson,  44  Mich.  123; 
38  Am.  Rep.  235;  Leslie  v.  Hinson,  83  Ala.  266;  Bloom  v.  Noggle,  4 
Ohio  St.  45;  Brown  v.  Kirkman,  1  Ohio  St.  116;  Tousley  v.  Tousley,  5  Ohio 
St.  78 ;  Fosdick  v.  Barr,  3  Ohio  St.  471 ;  Mayham  v.  Coombs,  14  Ohio, 
428;  Magee  v.  Beatty,  8  Ohio,  396;  Bercaw  v.  Cockerill,  20  Ohio  St.  163; 
Throckmorton  v.  Price,  28  Tex.  605;  Belbaze  v.  Ratto,  69  Tex.  36;  Har- 
rison V.  McMurray,  71  Tex.  122;  Gladding  v.  Frick,  88  Pa.  St.  460; 
Brooke's  Appeal,  64  Pa.  St.  127;  Clader  ?>.  Thomas,  89  Pa.  St.  343;  Wat- 
kins  r.  VVilhoit,  104  Cal.  395;  Parker  v.  Scott,  64  N.  C.  118;  Metts  t;. 
Bright,  4  Dev.  &  B.  173;  32  Am.  Dec.  683 ;  Davis  v.  Whitaker,  114  N.  C. 
279;  41  Am.  St.  Rep.  793;  Oaks  v.  Walls,  28  Ark.  244;  Lee  v.  Berming- 
ham,  30  Kan.  312;  Kiser  v.  Heuston,  38  111.  252;  Brown  v.  Banner 
Coal  &  Oil  Co.,  97  111.  214;  37  Am,  Rep.  105;  Merrick  v.  Wallace,  19  111. 
486;  Naltinger  v.  Ware,  41  111.  245;  Haworth  v.  Taylor,  108  III.  275; 
Bedford  v.  Tupper,  30  Hun,  174;  Simonson  v.  Falihee,  25  Hun,  570;  Mu- 
tual Life  Ins.  Co.  v.  Dake,  87  N.  Y.  257;  Lewis  v.  Hinman,  56  Conn. 
55;  Franklin  v.  Cannon,  1  Root,  500;  Bishop  v,  Schneider,  46  Mo.  472; 


919  REGISTRATION    OF    DEEDS.  §  679 

the  Supreme  Court  of  Rhode  Island,  "which  has  never 
been  recorded,  is  lodged  with  a  town  clerk,  the  act  of 
lodging  it,  unaccompanied  with  any  counter  declarations, 
is  itself  an  implied  direction  to  record;  and,  other  things 
equal,  the  title  is  complete  upon  its  being  lodged  with  such 
implied  directions;  for,  by  the  terms  of  our  statute,  the 
lodging  of  a  deed  to  be  recorded  is  equivalent  to  an  actual 
entry  of  it  upon  the  record,  so  far  forth  as  is  necessary  to 
perfect  the  title.  The  title  being  made  complete  by  such 
lodgment,  the  subsequent  neglect  of  the  town  clerk  cannot 
affect  the  grantee's  rights  under  the  deed.  The  deed  re- 
maining  on  file  in  the  clerk's  office  and  open  to  inspec- 
tion, is  notice  to  all  the  world  of  a  conveyance  of  the  land, 
either  absolute  or  conditional."^  A  deed  that  has  been 
so  filed  for  record,  is  sufficient  to  charge  subsequent  pur- 
chasers with  constructive  notice  from  that  time  of  its 
existence  and  execution,  and  is,  of  course,  entitled  to  prior- 
ity over  any  other  deed  subsequently  filed  for  record.^ 

2  Am.  Dec.  533;  Heidson  v.  Eandolph,  66  Fed.  Rep.  216;  13  C.  C.  A. 
402;  Mangold  v.  Barrow,  61  Miss.  593;  48  Am.  Rep.  84;  Jacobs  v.  Deni- 
Bon,  141  Mass.  117;  Gillespie  v.  Rogers,  146  Mass.  610.  When  a  deed 
has  been  deposited  with  the  proper  custodian,  at  the  right  time  and 
place,  a  party's  duty  to  file  a  paper  has  been  performed  :  Hook  v.  Fen- 
der, 18  Col.  283;  36  Am.  St.  Rep.  277;  Beebe  v.  Morrell,  76  Mich.  114; 
15  Am.  St.  Rep.  288. 

'  jN^ichols  V.  Reynolds,  1  R.  I.  30,  35;  36  Am.  Dec.  238.  See,  also, 
Gide  V.  Fauntleroy,  8  Mon.  B.  177;  Horsley  v.  Garth,  2  Gratt.  471;  44 
Am.  Dec.  393. 

2  Bigelow  V.  Topliff,  25  Vt.  274 ;  60  Am.  Dec.  264.  In  that  case,  Isham, 
J.,  in  delivering  the  opinion  of  the  court,  said:  "What  will  be  a  suffi- 
cient record  for  that  purpose,  depends  upon  the  object  and  general  pro- 
visions of  the  act.  In  some  cases,  the  instrument  must  be  recorded  at 
length  upon  the  book  of  records,  and  it  will  have  no  effect  until  it  is  so 
recorded.  This  is  true  in  all  cases  where  the  enrollment  is  necessary  to 
the  investing  of  the  title.  In  such  case,  it  is  made  a  condition  precedent, 
and  no  right  or  title  passes  until  the  statute  is  strictly  complied  with. 
This  rule  prevails  where  recording  is  required  of  the  proceedings  of  the 
collector  in  sales  of  land  for  taxes :  Clark  v.  Tucker,  6  Vt.  181 ;  Giddings 
V.  Smith,  15  Vt.  344.  So,  in  the  levy  of  executions  upon  real  estate,  the 
record  of  the  execution  and  levy  is  necessary  to  pass  the  title :  Morton 
V.  Edwin,  19  Vt.  81.  In  these  cases,  the  object  of  the  record  is  not 
simply  notice,  but  it  is  an  essential  link  in  the  chain  of  evidence  in  the 
proof  of  title  to  the  estate.  Where  the  object  of  the  record  is  notice, 
merely,  the  statute  is  complied  with  when  the  x)arty  has  left  the  instru- 


§  G80  REGISTRATION  OF  DEEDS.  920 

§  680.  Mistake  of  copying-  deed  iu  record — Conflict- 
ing- views.  —  A  deed  may  be  executed  in  every  particular 
as  required  by  law,  may  be  properly  acknowledged,  de- 
ment with  the  reconling  oflicer  for  that  purpose,  with  directions  for  its 
immediate  record.  This  construction  is  not  to  be  considered  as  an  open 
question,  but  as  settled  by  the  decisions  of  this  court,  as  well  as  by  that 
practical  construction  which  it  has  received  since  the  passage  of  the  act. 
This  principle  was  recognized  by  this  court  in  the  case  of  Ferris  v.  Smith, 
24  Vt.  27.  In  that  case,  the  act  required  'the  deputation  and  certificate 
of  the  oath  of  office  of  a  deputy  sheriff  to  be  recorded  in  the  county 
clerk's  office,  and,  until  recorded,  the  official  acts  of  such  deputy  were 
not  valid.'  The  object  of  the  act  was  notice,  and  lodging  that  deputa- 
tion and  certificate  with  the  county  clerk  for  record,  was  held  a  sufficient 
compliance  with  the  act  to  invest  him  with  the  prerogatives  of  the  office, 
and  render  valid  his  official  acts,  though  the  deputation  and  certificate 
had  not  been  recorded  in  extenso  upon  the  records.  In  Connecticut,  the 
same  rule  prevails,  and  leaving  the  deed  for  record  with  the  certificate 
of  the  clerk  thereon,  that  it  was  so  left  is  sufficient  to  protect  the  title 
as  against  the  grantor,  as  well  as  subsequent  purchasers  and  creditors : 
Hine  v.  Roberts,  8  Conn.  347.  The  difference  in  phraseology  between 
our  statute  and  theirs  is  not  such  as  to  justify  a  different  construction, 
particularly  where  the  practical  construction  of  the  act  has  been  uni- 
formly the  same."  Chancellor  Kent,  in  a  note  to  his  Commentaries, 
says :  "  The  statute  of  New  York  gives  priority  to  the  conveyance  which 
'shall  be  first  duly  recorded' ;  but  it  adds  that  it  shall  be  'considered  as 
recorded  from  the  time  of  the  delivery  to  the  clerk  for  that  purpose.' 
A  provision  to  the  same  effect  is  in  the  Massachusetts  Revised  Statutes 
for  1836,  though  no  doubt  the  previously  existing  rule  of  law  was  the 
same.  This  prevents  the  question  which  Mr.  Bell  says  has  arisen  in 
Scotland,  between  a  sasine  first  transcribed,  though  last  presented,  and 
a  sasine,  which,  by  the  minute-book,  is  proved  to  have  been  first  pre- 
sented, though  last  transcribed.  He  admits,  however,  the  better  con- 
struction of  the  statute  to  be  that  the  minute-book  of  the  time  of  the 
presentation  of  the  instrument  was  intended  to  be  the  regulator  of  the 
orderof  preference  by  priority:  1  Bell's  Com.  679";  4  Kent's  Com.  (12th 
ed.),  star  page  459.  In  Ferris  v.  Smith,  24  Vt.  27,  32,  the  court  said, 
with  reference  to  conveyances,  where  the  title  is  passed  or  the  right  ac- 
quired by  act  of  the  parties,  as  in  the  conveyance  of  real  estate  by  deed, 
that  "  though  a  record  is  necessary  in  order  to  give  full  effect  to  the 
transaction  for  collateral  purposes,  it  is  made  so  as  the  medium  of  gen- 
eral notice.  And,  as  a  public  recording  office  is  a  place  where  all  per- 
sons have  the  right  to  apply  for  information,  as  well  in  regard  to 
instruments  lodged  there  for  record  as  to  the  records  already  made,  the 
act  of  the  party  in  lodging  the  evidence  of  his  title  in  such  an  office,  for 
the  bona  fide  purpose  of  having  it  recorded  without  delay,  and  the  recep- 
tion of  it  by  the  recording  officer  for  the  same  purjjose,  are  held  to  oper- 
ate like  the  record  itself  as  notice  to  third  persons.  In  other  words,  the 
deed  or  instrument  thus  deposited  and  received  is  deemed  to  be  of  record 


921  REGISTRATION    OF    DEEDS.  §  681 

posited  with  the  proper  officer  for  registration,  yet  may 
not  be  correctly  copied  by  the  recording  officer  into  the 
record-books.  In  such  a  case,  a  searcher  of  tlie  records 
is  compelled  to  assume  that  the  information  they  contain 
is  true.  He  rarely  has  an  opportunity  to  inspect  the 
original  deed,  and  even  if  he  has  such  an  opportunity, 
deems  an  inspection  of  the  original  unnecessary.  At  the 
same  time,  the  person  who  has  recorded  his  conveyance 
has  done  all  in  his  power  to  secure  a  proper  registration. 
If  a  mistake  is  made  in  the  copying  of  the  deeds,  the 
fault  is  not  his.  A  very  interesting  question  arises  when 
a  mistake  has  been  made  by  the  officer  in  spreading  the 
deed  on  the  record.  Shall  the  purchaser  who  acted  in 
good  faith  and  acquired  his  rights  in  the  honest  belief 
that  the  records  correctly  showed  the  various  claims  upon 
the  property,  suffer  because  the  officer  failed  to  do  his 
duty,  or  shall  the  person  who  presented  his  conveyance 
for  registration  bear  the  consequences  of  the  officer's 
negligence?  The  decisions  are  contradictory  on  this 
question.  On  one  side  it  is  asserted  that  the  person  who 
files  a  deed  for  record  is  not  responsible  for  the  officer's 
neglect,  and  on  the  other,  it  is  declared  with  equal  confi- 
dence that  the  records  do  not  give  notice  of  what  they 
do  not  contain. 

§  681.  View  that  the  grantee  is  not  affected  by  mis- 
take in  copying^  the  deed. — On  one  hand,  on  the  ground 
that  a  deed  is  considered  as  recorded,  when  it  is  left  with 
the  officer  for  the  purpose  of  registration,  it  is  held  that 
by  depositing  the  deed  with  the  proper  officer,  the  grantee 
has  done  all  that  is  required  of  him,  and  although  the  offi- 
cer records  only  a  portion  of  the  instrument,  or  omits  to 
record  it  at  all,  the  rights  of  the  grantee  cannot  thereby  be 

or  recorded :  Marbury  v.  Madison,  1  U.  S.  Oond.  R.  273,  274.  This  is  on 
condition,  to  be  sure,  that  a  full  and  proper  record  be  ultimately  made, 
and  tliat  the  party  shall  in  no  way  interfere  to  prevent  or  delay  the 
making  it :  Sawyer  &  Rogers  v.  Adams,  8  Vt.  172 ;  30  Am.  Dec.  459."  See, 
also,  Davia  v.  Ownsby,  14  Mo.  170;  55  Am.  Dec.  105. 


§681  REGISTRATION    OF    DEEDS.  922 

injuriously  affected.^  A  statute  in  Illinois  provided  that 
after  a  specilied  date  "all  deeds  and  other  title  papers 
which  are  required  to  be  recorded  shall  take  effect  and 
be  in  force  from  and  after  the  time  of  filing  the  same 
for  record,  and  not  before,  as  to  all  subsequent  creditors 
and  purchasers  without  notice,  and  all  such  deeds  and 
title  papers  shall  be  adjudged  void,  as  to  all  such  cred- 
itors and  subsequent  purchasers  without  notice,  until  the 
same  shall  be  filed  for  record  in  the  county  where  the 
said  lands   may  lie."     The  recorder  in  recording  a  deed 

^  Riggs  V.  Boylan,  4  Biss.  445;  Polk  v.  Cosgrove,  4  Biss.  437 ;  Marigold 
V.  Barlow,  61  Miss.  593;  48  Am.  Rep.  84;  Riser  v.  Heuston,  38  111.  252; 
Bedford  v.  Tapper,  30  Hun,  174 ;  Merrick  v.  Wallace,  19  111.  486 ;  Wood's 
Appeal,  82  Pa.  St.  116;  s.  c.  13  Am.  Law  Reg.  255;  Flowers  v.  Wilkes,  1 
Swan,  408 ;  Lee  v.  Bermingham,  30  Kan.  312;  Bank  of  Kentucky  v.  Hag- 
gin,  1  Marsh.  A.  K.  306;  Brooke's  Appeal,  64  Pa.  St.  127;  Nichols  v. 
Reynolds,  1  R.  I.  30;  36  Am.  Dec.  238;  Musser  v.  Hyde,  2  Watts  &  S. 
314;  Oats  v.  Walls,  28  Ark.  244;  Mims  v.  Mims,  35  Ala.  23;  Throckmor- 
ton v.  Price,  28  Tex.  605 ;  91  Am.  Dec.  334;  Beverly  v.  Ellis,  1  Rand.  2J2; 
Board  of  Commrs.  v.  Babcock,  5  Or.  472 ;  Case  v.  Hargadine,  43  Ark.  144 ; 
Nichols  V.  Reynolds,  1  R.  I.  30;  36  Am,  Dec.  238;  Marlet  v.  Hinman,  77 
Wis.  136;  20  Am.  St.  Rep.  102;  Gillespie  v.  Rogers,  146  Mass.  610; 
Farnsworth  v.  Jordain,  15  Gray,  517;  Tracy  v.  Jenks,  15  Pick.  465;  Ames 
V.  Phelps,  18  Pick.  314;  Fuller  v.  Cunningham,  105  Mass.  442;  Wood  v. 
Simons,  110  Mass.  116.  See,  also,  Poplin  v.  Mundell,  27  Kan.  138;  Glad- 
ing  V.  Frick,  88  Pa.  St.  460;  Lignoski  v.  Crooker,  86  Tex.  324;  24  S.  W. 
Rep.  278;  Freiberg  v.  Magale,  70  Tex.  116;  7  S.  W.  Rep.  684;  Woodson 
V.  Allen,  54  Tex.  551 ;  Converse  v.  Potter,  45  N.  H.  385 ;  Tousley  v.  Tous- 
ley,  5  Ohio  St.  78;  Brown  v.  Kirkman,  1  Ohio  St.  116;  Green  v.  Carring- 
ton,  16  Ohio  St.  548;  91  Am.  Dec.  103;  Lewis  v.  Hinman,  56  Conn.  55; 
13  Atl.  Rep.  143;  Hine  v.  Robbins,  8  Conn.  342;  Franklin  v.  Cannon,  1 
Root,  500;  Watkins  v.  Wilhoit,  104  Cal.  395;  Fouche  v.  Swain,  80  Ala. 
151;  Chatham  v.  Bradford,  50  Ga.  327;  15  Am.  Rep.  692;  Hiatt  v.  Callo- 
way, 7  B.  Mon.  178;  Bank  v.  Haggin,  1  Marsh.  A.  K.  306 ;  Mutual  Insur- 
ance Co.  V.  Dake,  87  N.  Y.  257;  Taylor  v.  Hotdikiss,  2  La.  Ann.  917; 
Falconer's  Succession,  4  Rob.  5;  Payne  v.  Pavey,  29  La.  Ann.  116;  Swan 
I).  Vogle,  31  La.  Ann.  38;  Swepson  v.  Bank,  9  Lea,  713;  Woodward  w. 
Boro,  16  Lea,  678 ;  Mangold  v.  Barlow,  61  Miss.  593 ;  48  Am.  Rep.  84. 
When  a  deed  is  filed  for  record  it  operates  as  constructive  notice,  though 
the  officer  may  fail  to  observe  the  requirements  of  the  statute  in  relation 
to  its  recordation:  Deming  v.  Miles,  35  Neb.  739;  37  Am.  St.  Rep.  464. 
See,  also,  Perkms  v.  Strong,  22  Neb.  725.  See,  also,  Franklin  v.  Cannon, 
1  Root,  500;  Hartmyer  v.  Gates,  1  Root,  61 ;  Judd  v.  Woodruff,  2  Root, 
298;  McDonald  v.  Leach,  Kirby,  72;  McGregor  v.  Hill,  3Stewt.  &  P.  397. 
And  see  Ulader  v.  Thomas,  89  Pa.  St.  343;  Gaskill  v.  Badge,  3  Lea  (Tenn), 
144. 


923  REGISTRATION    OF    DEEDS.  §  681 

misdescribed  the  premises  in  his  record.  The  court 
held  that  the  grantee  performed  his  duty  by  leaving 
his  deed  for  record  with  the  proper  officer;  and  the 
mistake  in  the  record  did  not  affect  the  question  of 
notice  given  by  filing  the  deed  for  record/  Commenting 
on  the  statute  above  quoted,  Mr.  Justice  Breese  said: 
"  This  was  the  law  in  force  at  the  time  of  the  execution 
of  the  deed  to  Hugunin,  and  under  it,  all  the  duty  he 
had  to  perform  to  make  it  available  against  the  world, 
was  to  phice  it  with  the  recorder  to  be  filed  for  record. 
Before  that  time  it  had  effect  only  as  against  the  grantors 
— after  that  time,  it  took  effect  and  was  in  force  against 
all  persons.  It  is  only  by  virtue  of  this  law  that  the 
plaintiff  can  claim  to  postpone  defendant's  deed,  and  de- 
stroy its  effect  as  against  his  purchase  at  the  sheriff's  sale. 
He  is,  in  effect,  claiming  to  enforce  a  statute  penalty  im- 
posed upon  the  grantee  in  the  deed,  by  reason  of  his  hav- 
ing omitted  to  do  something  the  law  required  him  to  do 
to  protect  himself  and  preserve  his  rights.  The  law  never 
intended  a  grantee  should  suffer  this  forfeiture,  if  he  has 
conformed  to  its  provisions.  The  plaintiff  claiming  tlie 
benefit  of  this  statute,  being,  as  it  is,  in  derogation  of  the 
common  law,  and  conferring  a  right  before  unknown,  he 
must  find  in  the  provisions  of  the  statute  itself,  the  letter 
which  gives  him  that  right.  To  the  statute  alone  must 
we  look  for  a  purely  statutory  right.  All  that  this  law 
required  of  the  grantee  in  the  deed,  was  that  he  should 
file  his  deed  for  record  in  the  recorder's  office,  in  order  to 
secure  his  rights  under  the  deed.  When  he  does  that,  the 
requirements  of  the  law  are  satisfied,  and  no  right  to 
claim  this  forfeiture  can  be  set  up  by  a  subsequent  pur- 
chaser. The  statute  does  not  give  to  the  subsequent  pur- 
chaser the  right  to  have  the  first  deed  postponed  to  his,  if 
the  deed  is  not  actually  recorded,  but  only  if  it  is  not  filed 
for  record.  If  it  was  not  properly  recorded  after  the 
grantee  had  left  it  to  be  filed  for  record,  and  by  reason 
thereof  a  subsequent  purchaser  is  misled,  he  surely  has 

»  Merrick  v.  Wallace,  19  111.  486. 


§  682  REGISTRATION    OF    DEEDS.  924 

no  right  to  say  that  the  first  purchaser  shall  suffer  by 
this  omission  of  the  recorder  to  perform  his  duty,  rather 
than  himself.  The  statute  leaves  such  a  loss  to  fall  where 
the  common  law  left  it.  In  such  a  case  the  subsequent 
purcliaser  cannot  call  in  aid  the  statute,  because  his  case 
does  not  come  within  its  provisions.  In  such  a  case  the 
statute  is  silent,  and  the  common  law  must  take  its  course. 
He  must  seek  his  remedy  against  the  recorder."^ 

§  682.  Reasonable  precaution. — Where,  under  the 
registration  laws,  the  filing  of  a  deed  is  equivalent  to  its 
actual  registration,  the  fact  that  a  subsequent  bona  fide 
purchaser  for  value  and  without  notice  took  every  reason- 
able precaution  to  ascertain  the  condition  of  the  title,  and 
bought  and  paid  for  the  land  only  on  the  assurance  of  the 
recording  officer  that  there  was  in  his  office  no  evidence 
of  a  conflicting  right  to  the  property,  cannot  give  his  deed 
precedence  over  such  prior  deed  filed  for  record,  but  not 
actually  recorded.^     In  Virginia,  it  is  held  that  although 

J  Merrick  v.  Wallace,  19  111.  486,  497. 

2  Throckmorton  v.  Price,  28  Tex,  606 ;  91  Am.  Dec.  334.  Said  the  court : 
"In  whatever  manner  the  question  presented  in  this  case  is  decided,  it 
must  operate  to  the  injury  of  innocent  parties ;  there  is,  therefore,  no 
equitable  consideration  favoring  a  preference  of  the  parties  on  one  side 
over  those  on  the  other.  The  point  in  issue  between  them  must  be  de- 
termined by  an  application  of  the  provisions  of  the  registration  laws  to 
the  facts  of  the  case.  When  this  is  done,  there  cannot  be  the  slightest 
doubt  as  to  a  correct  decision  of  the  question  before  us,  and  that  the  in- 
struction given  to  the  jury  was  erroneous.  But  for  the  registration  law, 
the  older  title  would  obviously  convey  the  better  right.  And  it  is  the 
uniform  provisions  of  these  laws  that  such  instruments  as  must  be  re- 
corded shall  be  valid  as  to  all  subsequent  purchasers  for  a  valuable  con- 
sideration without  notice,  and  as  to  creditors  from  the  date  when  such 
instrument  shall  be  properly  acknowledged,  proved,  or  certified  and  de- 
livered to  the  clerk  for  record,  and  from  that  time  only.  (O.  &  W.,  arts. 
1726,  1727,  1730, 1731.)  And  lest  there  should  be  any  doubt  in  the  mat- 
ter, it  is  further  enacted  that  any  instrument  required  to  be  recorded 
shall  be  considered  as  recorded  from  the  time  it  was  deposited  for  record 
with  the  clerk.  (0.  &  W.,  art.  1709.)  And  to  enable  all  persons  who 
may  wish  to  examine  the  office  to  ascertain  what  instruments  have  been 
deposited  for  record,  it  is  also  made  the  duty  of  the  clerk  (O.  &  W.,  art. 
1707),  when  any  instrument  has  been  deposited  for  record,  to  enter  in 
alphabetical  order,  in  a  book  to  be  provided  lor  that  purpose,  the  namea 
of  the  parties  to  such  instrument,  the  date  and  nature  thereof,  and  the 


925  REGISTRATION    OF    DEEDS.  §  682 

the  deed  may  be  lost  by  the  negligence  of  the  recorder, 
or  may  be  stolen  from  his  office,  it  m.ust  be  considered  as 
recorded,  if  it  has  been  left  with  him  for  record.'     Where 

time  of  its  delivery  for  record.  And  as  a  further  facility  and  security  for 
persons  wishing  to  make  an  examination  in  the  office  of  the  recorder  for 
instruments  required  by  law  to  be  recorded,  the  clerk,  after  recording  any 
such  instrument,  is  directed  to  enter  the  same  in  the  index-books  which 
he  is  required  to  keep  of  recorded  instruments.  (O.  &  W.,  arts.  1710, 
1711,  1712.)  If  the  clerk  has  neglected  to  comply  with  these  plain  and 
simple  requirements  of  the  statute,  and  appellees  have  been  thereby 
misled  to  their  injury,  they  cannot  claim  redress  for  such  injury  from 
appellants,  who  have  been  in  no  default.  The  law  did  not  impose  upon 
them  the  responsibility  of  seeing  that  the  duties  prescribed  by  the  stat- 
ute for  the  protection  and  security  of  other  parties,  were,  in  fact,  faith- 
fully discharged  by  the  clerk.  Registration  laws  of  a  general  similarity  to 
ours  have  been  enacted  in  most  of  the  other  States,  yet  we  have  been  able 
to  find  no  case  in  which  the  first  deed  has  been  postponed  in  favor  of  the 
second,  from  the  failure  of  the  clerk  to  record  the  prior  deed  as  directed 
by  the  statute,  while  the  contrary  has  been  frequently  decided."  And 
see  Woodson  v.  Allen,  54  Tex.  551. 

"In  Oats  V.  Walls,  28  Ark.  244,247,  the  court  said:  "Our  own  court, 
through  Justice  Bennett,  in  the  case  of  Harrison  &  Stewart  v.  Lewis,  Com- 
missioner, 26  Ark.  154.  said :  '  The  certificate  of  entry  now  before  us  was 
issued  in  strict  conformity  to  the  above  enactment,  with  the  exception 
of  making  a  note  of  such  entry  on  his  township  maps,  and  in  his  books, 
to  be  kept  for  that  purpose.  It  is  a  well-established  principle  that  when 
an  individual,  in  the  prosacution  of  a  right,  does  everything  which  the 
law  requires  him  to  do,  and  he  fails  to  obtain  his  right  by  the  miscon- 
duct or  neglect  of  a  public  officer,  the  law  will  i:»rotect  him ' :  Lytle  v. 
The  State,  9  How.  333.  In  the  United  States  v.  Castillero,  2  Black,  97, 
the  Supreme  Court  of  the  United  States  say :  '  Besides,  it  is  a  universal 
rule  that  omissions  by  a  public  officer,  in  the  mode  of  complying  with 
forms  prescribed  to  him  as  his  duty,  are  not  permitted  to  affect  the 
party' :  Nichols  v.  Reynolds,  1  R.  I.  36;  36  Am.  Dec.  238.  In  5  Marsh. 
J.  J.  558,  it  is  said  the  mistake  of  the  officer  ought  not  to  prejudice  the 
rights  of  the  parties.  To  the  same  effect,  see  Merrick  v.  Wallace,  19  111. 
486 ;  3  Peters,  338.  That  the  grantee  was^  only  bound  to  properly  file 
his  deed  for  record,  and  thereafter  it  was  the  duty  of  the  clerk  (for  the 
performance  of  which  the  clerk  alone  is  responsible)  to  note  the  filing 
and  enter  it  upon  the  record,  is,  in  effect,  held  by  the  above  and  other 
cases." 

The  record  is  not  vitiated  by  the  fact  that  it  contains  no  copy  of  the 
seal,  or  any  mark  to  indicate  a  seal.  It  is  sufficient  if  the  deed  which  is 
recorded  purports  to  be  under  seal :  Smith  v.  Dall,  13  Cal.  510.  And 
see  Jones  v.  Martin,  16  Cal.  165. 

'  Beverly  v.  Ellis,  1  Rand.  102.  The  court  said  that  the  construction 
of  the  words  of  a  section  which  gave  a  deed  priority  if  filed  for  record, 
"and  recorded  according  to  the  directions  of  this  act,"  would  not  be 


§   GS3  REGISTRATION    OF    DEEDS.  926 

this  rule  prevails,  it  is  possible  that  a  party,  in  the  regis- 
tration of  whose  deed  a  mistake  was  made,  might  be 
estopped,  if,  after  knowledge  of  the  defect  in  the  record, 
he  is  guilty  of  hiches  in  failing  to  give  notice  of  his  title.^ 

§  683.  Contrary  view  tbat  piircbaser  is  bound  by  only 
"wbat  appears  upon  the  record,  and  g-rantee  must  suffer 
for  mistake  in  record. — On  the  other  hand,  the  doctrine 
announced  by  many  courts  is,  that  the  records  are  only 
notice  of  what  they  contain,  and  that  if  a  deed  has 
been  filed  for  record,  but  incorrectly  copied,  the  grantee 
filing  the  deed  must  suffer  for  any  error  contained  in 
the  record,  rather  than  an  innocent  purchaser  who  has 
parted  with  value  in  the  belief  that  the  records  truly  dis- 
closed all  the  rights  of  others.^  The  courts  that  declare 
this  rule,  while  admitting  for  the  most  part  that  the  rec- 
ord of  a  deed  becomes  effective  from  the  time  that  a  deed 

tolerated,  "which  would  make  it  depend  on  the  acts  or  omissions  of  the 
clerk,  over  whom  he  has  no  control,  and  with  whom  the  law  compels 
him  to  deposit  his  deed.  A  different  construction  would  be  attended 
with  great  mischief.  The  act  having  prescribed  no  time  to  the  clerk  to 
record  a  d  ed  by  spreading  it  on  the  record,  its  validity  would  be  fluctu- 
ating and  uncertain,  and  the  object  of  the  act  defeated.  If  there  is  any 
defect  in  the  notice  when  searched  for,  the  subsequent  purchaser,  per- 
haps, has  his  remedy  against  the  clerk,  if  it  was  his. duty  to  make  it 
perfect." 

^  See  Lee  v.  Bermingliam,  30  Kan.  312. 

*  Potter  V.  Dooley,  5u  Vt.  512;  Jennings  i;.  Wood,  20  Ohio,  261;  State 
V.  Davis,  96  Ind.  539;  Barnard  v.  Campau,  29  Mich.  Ib2;  White  v.  Mc- 
Garry,  2  Flipp.  C.  C.  572;  Terrell  v.  Andrew  County,  44  Mo.  309;  Bry- 
don  V.  Campbell,  40  Md.  331;  Payne  v.  Pavey,  29  La.  Ann.  116;  Miller  v. 
Bradford,  12  Iowa,  14;  Sanger  v.  Craigue,  10  Vt.  5o5;  New  York  Life 
Ins.  Co.  V.  White,  17  N.  Y.  469;  Heistner  v.  Fortner,  'J.  Binn.  40;  4  Am. 
Dec.  417;  Gilchrist  v.  Gough,  63  Ind.  576;  30  Am.  Rep.  250;  S.  C.  19 
Alb.  L.  J.  276;  Disque  v.  Wright,  49  Iowa,  538;  s.  c.  13  West.  Jur.  34, 
158;  Taylor  v.  Hotchkiss,  2  La.  Aim.  917.  See,  also,  Beekman  v.  Frost, 
18  Johns.  544;  9  Am.  Dec.  246;  Frost  v.  Beekman,  1  Johns.  Oh.  299; 
Chamberlain  v.  Bell,  7  Cal.  292;  68  Am.  Dec.  260;  Taylor  v.  llariison,47 
Tex.  454;  26  Am.  Rep.  304;  Sinclair  v.  Slawson,  44  Mich.  123;  38  Am. 
Rep.  235:  Doaald  v.  Beales,  57  Cal.  399;  Page  v.  Rogers,  31  Cal.  293; 
Smith  V.  Lowry,  113  Ind.  37;  15  N.  E.  Rep.  17;  McLarren  v.  Thompson, 
40  Me.  284;  Hill  v.  McNichol,  76  Me.  314;  Stedman  r.  Perkins,  42  Me. 
130;  Ritchie  v.  Griffiths,  1  Wash.  St.  42);  22  Am.  St.  Rep.  165;  25  Pac. 
Kep.  341.    Where  a  deed  appears  to  have  been  recorded  twice,  and  there 


927  REGISTRATION    OF    DEEDS.  §   684 

is  filed  Avitli  the  recording  officer  for  registration,  draw  a 
distinction  in  cases  where  after  filing  the  deed  its  con- 
tents are  not  correctly  spread  upon  record.  They  hold 
that  the  purchaser  is  not  bound  to  enter  into  a  long  and 
laborious  search  into  the  original  papers  to  ascertain 
whether  the  recorder  has  faithfully  performed  his  duty  or 
not.  They  consider  that  the  obligation  of  giving  notice 
is  placed  upon  the  person  who  holds  the  title,  and  that 
he,  and  not  an  innocent  purchaser,  must  suffer  the  conse- 
quences of  an  imperfect  performance  of  this  duty. 

§  684.  Fuller  presentation  of  this  view. — For  a  fuller 
presentation  of  the  view  taken  by  the  courts  adopting 
this  rule,  we  may  refer  to  a  case  in  Missouri,  where  Mr. 
Justice  Wagner,  in  delivering  the  opinion  of  the  court, 
said  :  "It  is  contended  here  on  behalf  of  the  county,  that 
according  to  our  statute,  when  a  person  files  with  ihe  re- 
corder an  instrument,  it  imparts  notice  of  its  real  con- 
tents to  all  subsequent  purchasers,  regardless  of  any 
mistakes  that  the  recorder  may  commit  in  placing  it  on 
record;  that  the  statute  provides  that  every  instrument 
in  writing  certified  and  recorded  in  the  manner  pre- 
scribed shall,  from  the  time  of  filing  the  same  with  the 
recorder  for  record,  impart  notice  to  all  persons  of  the 
contents  thereof;  and  all  subsequent  purchasers  and 
mortgagees  shall  be  deemed,  in  law  and  equity,  to  pur- 
chase with  notice.  According  to  the  literal  interpretation 
of  the  section,  no  notice  is  imparted  till  the  instrument  is 
actually  placed  on  record,  and  then  it  relates  back  to  the 
time  of  filing.  It  was,  no  doubt,  the  intention  of  the 
legislature  to  give  a  person  filing  an  instrument  or  con- 
veyance all  the  benefit  of  his  diligence;  and  when  he 
deposits  the  same  with  the  recorder,  and  has  it  placed  on 
file,  he   has  done  all  that  he  can  do,  and  has  complied 

is  a  dissimilarity  between  them  as  they  are  recorded,  the  court  will  take 
iuU)  considiiration  the  evidence  afforded  by  the  records  themselves  as  to 
which  has  been  more  carefully  registered,  the  situation  of  tlie  property 
asdesrribed  in  each,  and  the  conduct  of  the  parties  as  it  relates  to  the 
proi)erty  iu  dispute:  Stinson  v.  Doolittle,  50  Fed.   Rep.    12. 


§  G84  REGISTRATION   OP   DEEDS.  928 

with  the  requirement  of  the  law.  From  that  time  it  will 
give  full  notice  to  all  subsequent  purchasers  and  encum- 
brancers. A  person  in  the  examination  of  titles,  first 
searches  the  records;  and  if  he  finds  nothing  there,  he 
looks  to  see  if  any  instruments  are  filed  and  not  re- 
corded. If  nothing  is  found  and  he  has  no  actual  notice, 
so  far  as  he  is  concerned,  the  land  is  unencumbered.  If 
he  finds  a  conveyance  he  goes  no  further;  he  never  in- 
stitutes an  inquiry  to  find  whether  the  deed  is  correctly 
recorded  or  the  contents  literally  transcribed.  Indeed,  to 
attempt  to  prosecute  such  a  search  would  be  idle  and 
nugatory.  Grantees  do  not  usually  leave  their  deeds 
lying  in  the  recorder's  oflice  for  the  inspection  of  the 
public.  After  they  are  recorded,  they  take  them  out  and 
keep  them  in  their  possession.  In  a  large  majority  of 
cases,  it  would  not  only  entail  expense  and  trouble,  but  it 
would  be  useless  to  attempt  to  get  access  to  the  original 
papers.  Hard  and  uncertain  would  be  the  fate  of  subse- 
quent purchasers  if  they  could  not  rely  upon  the  records, 
but  must  be  under  the  necessity,  before  they  act,  of  trac- 
ing up  the  original  deed  to  see  that  it  is  correctly  re- 
corded. The  statute  says  that  when  the  deed  is  certified 
and  recorded  it  shall  impart  notice  of  the  contents  from 
the  time  of  filing.  Certainly;  but  this  is  to  be  under- 
stood in  the  sense  that  the  deed  is  rightly  recorded, 
and  the  contents  correctly  spread  upon  the  record.  It 
never  was  intended  to  impose  upon  the  purchaser  the 
burden  of  entering  into  a  long  and  laborious  search  to 
find  out  whether  the  recorder  had  faithfully  performed 
his  duty.  The  obligation  of  giving  the  notice  rests  on 
the  party  holding  the  title.  If  he  fails  in  his  duty,  he 
must  suffer  the  consequences.  If  his  duty  is  but  im- 
perfectly performed,  he  cannot  claim  all  the  advantages 
and  lay  the  fault  at  the  door  of  an  innocent  purchaser."  * 

1  Terrell  v.  Andrew  County,  44  Mo.  309,  311.  In  Sawyer  v.  Adams,  8 
Vt.  172, 176,  30  Am.  Dec.  459,  the  court,  per  Williams,  C.  J.,  say :  "  In  such 
cases,  the  purchaser  may  be  wholly  free  from  fault  or  negligence.  He 
may  deliver  his  deed  to  the  proper  officer,  and  it  may  be  returned  to 
him  as  recorded,  but  through  accident  or  design  it  is  not  truly  recorded. 


929  REGISTRATION    OF    DEEDS.  §  6S4 

In  Iowa,  the  language  of  the  statute  of  1839,  was  that  an 
instrument  in  writing,  properly  certified  and  acknowl- 
edged, "  shall  from  the  time  of  filing  the  same  with 
the  recorder  for  record,  impart  notice  to  all  persons  of 
the  contents  thereof,  and  all  subsequent  purchasers  and 
mortgagees  shall  be  deemed  in  law  and  equity  to  purchase 
with  notice."  ^  The  supreme  court  of  that  State  placed 
an  entirely  different  construction  upon  this  statute 
from  that  given  in  Illinois  to  one  of  similar  import.^ 
Wright,  J.,  delivered  the  opinion  of  the  court,  and,  refer- 
ring to  this  statute,  said:  "This  statute  in  our  opin- 
ion Avas  only  intended  to  fix  the  iime  from  which  notice 
to  subsequent  purchasers  was  to  commence,  and  not  to 
make  such  filing  or  depositing  notice  of  the  contents  after 
the  same  was  recorded.  After  the  record  of  the  deed,  the 
record  itself  is  the  constructive  notice  of  its  contents, 
and  it  never  was  the  intention  of  the  legislature  to  hold 

Subsequent  purchasers  or  creditors  having  no  other  means  of  knowledge 
of  the  contents  of  the  deed  than  by  resorting  to  the  records,  cannot  be 
considered  as  having  notice  of  any  other  conveyance  than  such  as  ap- 
peared on  record.  The  object  of  recording,  as  has  already  been  noticed, 
is  for  the  purpose  of  notice  to  after-purchasers  and  creditors.  In  con- 
sidering what  is  necessary  to  complete  a  record,  it  will  not  answer  to 
say  that  the  record  may  be  so  made  as  entirely  to  defeat  the  object  for 
which  it  was  designed.  The  purcliaser  may  fairly  deliver  his  deed  to  the 
town  clerk.  The  clerk  may  return  it  to  him  with  a  regular  certificate  that 
it  has  been  recorded ;  and  if  he  docs  nothin-j;  more,  if  he  does  not  re- 
cord it  in  fact,  there  is  no  actual  or  constructive  notice  to  purchasers  of 
the  existence  of  such  deed.  The  clerk  is  guilty  of  fraud,  and  the  per- 
son who  left  the  deed  for  record  is  deceived ;  still  his  deed  is  not  re- 
corded and  no  title  passes  thereby,  except  as  against  the  grantor  and 
his  heirs.  In  such  a  case  there  can  be  no  doubt  that  the  purchaser  will 
lose  his  title  throu<xh  the  fault  or  fraud  of  the  town  clerk."  See,  also 
Huntington  v.  Oobleigh,  5  Vt.  49;  Skinner  v.  McanDiel,  5  Vt.  639.  In 
Jenning's  Lessee  v.  Wood,  20  Ohio,  261,  266,  it  is  said  by  Caldwell,  J. 
delivering  the  opinion  of  the  court:  "The  obligation  rests  on  the  party 
holding  the  title  to  give  the  notice.  He  controls  the  deed  ;  he  can  put 
it  on  record  or  not  at  his  pleasure.  If  from  any  cause  he  falls  short  of 
giving  the  legal  notice,  the  consequences  must  fall  on  himself.  It  is  hia 
own  business,  and  he  must  suffer  the  consequences  of  its  being  imper- 
fectly performed."     See  Curtis  v.  Root,  28  111.  367. 

*  Miller  v.  Bradford,  12  Iowa,  14. 

*  For  case  in  Illinois,  see  Merrick  v.  Wallace,  19  111.  486,  §  681. 

Ueehs,  Vol.  II.  —59 


§  685  REGISTRATION    OF    DEEDS.  930 

a  subsequent  purchaser,  buying  after  the  recording,  bound 
by  the  contents  of  a  deed,  ever  so  improperly  and  incor- 
rectly recorded,  because  at  some  time  a  deed  correct  in 
the  description  of  the  property  was  filed  with  the  re- 
corder." ^ 

§  685.  Views  of  Mr.  Pomeroy. — Mr.  Pomeroy,  in  his 
treatise  on  Equity  Jurisprudence,  takes  the  view  that  a 
record  is  constructive  notice  only  to  the  extent  that  it  is 
a  true  copy  of  the  original  instrument,  and  that  a  subse- 
quent purchaser  may  act  upon  the  information  disclosed 
by  the  records,  irrespective  of  the  question  whether  they 
set  out  the  original  deed  correctly  or  not.  He  says:  "A 
record  is  a  constructive  notice,  only  when,  and  so  far  as, 
it  is  a  true  copy,  substantially,  even  if  not  absolutely,  cor- 
rect, of  the  instrument  which  purports  to  be  registered, 
and  of  all  its  provisions.     Any  material  omission  or  alter- 

^  Miller  V.  Bradford,  12  Iowa,  19.  See,  also,  Miller  v.  Ware,  31  Iowa, 
524;  Disque  v.  Wright,  49  Iowa,  538.  In  Frost  v.  Beekman,  1  Johns.  Ch. 
288,  the  Chancellor  said:  "The  true  construction  of  the  act  appears  to 
be  that  the  registry  is  notice  of  the  contents  of  it  and  no  more,  and  that 
the  purchaser  is  not  to  be  charged  with  notice  of  the  contents  of  the 
mortgage,  any  further  than  they  may  be  contained  in  the  registry. 
The  purchaser  is  not  bound  to  attend  to  the  correctness  of  the  registry. 
It  is  the  business  of  the  mortgagee,  and  if  a  mistake  occurs  to  his  preju- 
dice, the  consequences  of  it  lie  between  him  and  the  clerk,  and  not 
between  him  and  the  bona  fide  purchaser.  The  act  in  providing  that  all 
persons  might  have  recourse  to  the  registry,  intended  that  as  the  correct 
and  sufficient  source  of  information;  and  it  would  be  a  doctrine  produc- 
tive of  immense  mischief  to  oblige  the  purchaser  to  look,  at  his  peril,  to 
the  contents  of  every  mortgage,  and  to  be  bound  by  them,  when  differ- 
ent from  the  contents  as  declared  in  the  registry.  The  registry  might 
prove  only  a  snare  to  the  purchaser,  and  no  person  could  be  safe  in  his 
purchase  without  hunting  out  and  inspecting  the  original  mortgage,  a 
task  of  great  toil  and  difficulty.  I  am  satisfied  that  was  not  the  inten- 
tion, as  it  certainly  is  not  the  sound  policy  of  the  statute;  nor  is  it  repug- 
nant to  the  doctrine  contained  in  the  books,  that  notice  to  a  purchaser 
of  the  existence  of  a  lease  is  notice  of  its  contents."  See,  also.  Peck  v. 
Mallams,  10  N.  Y.  518 ;  Ford  v.  James,  4  Keyes,  300.  But  it  was  held  ia 
Simonson  v.  Falihee,  25  Hun,  570,  that  a  release  of  mortgaged  land  ia 
complete  when  it  is  left  with  the  clerk  for  record,  and  that  where  there 
is  no  fraud  or  collusion,  the  party  is  not  resf)Onsible  for  an  error  of  the 
clerk  in  recording  it,  and  the  erroneous  record  in  such  a  case  does  not 
bind  the  party  executing  the  release. 


931  REGISTRATION    OF    DEEDS.  §  G86 

ation  will  certainly  prevent  the  record  from  being  a  con- 
structive  notice  of  the  original  instruvient,  although  it  may- 
appear  on  the  registry  books  to  be  an  instrument  perfect 
and  operative  in  all  its  parts.  The  test  is  a  plain  and 
simple  one.  It  is,  whether  the  record,  if  examined  and 
read  by  the  party  dealing  with  the  premises,  would  be  an 
actual  notice  to  him  of  the  original  instrument,  and  of  all 
its  parts  and  provisions.  By  the  policy  of  the  recording 
acts  such  a  party  is  called  upon  to  search  the  records,  and 
he  has  a  right  to  rely  upon  what  he  finds  there  entered 
as  a  true  and  complete  transcript  of  any  and  every  instru- 
ment affecting  the  title  to  the  lands  with  respect  to  which 
he  is  dealing.  A  record  can  only  be  a  constructive 
notice,  at  most,  of  whatever  is  contained  within  itself."^ 
And  again:  "Furthermore,  the  record  of  an  instrument 
which  is  itself  duly  executed  and  entitled  to  be  registered, 
does  not  operate  as  a  constructive  notice,  unless  it  is  made 
in  the  proper  form  and  manner,  in  the  proper  book,  as 
required  by  the  statute.  The  policy  of  the  recording  acts 
is  that  those  persons  who  are  affected  with  constructive 
notice  should  be  able  to  obtain  an  actual  notice  and  even 
full  knowledge  by  means  of  a  search.  A  search  could 
not,  ordinarily,  be  successful  and  lead  the  party  to  the 
knowledge  wliich  he  seeks,  if  the  instrument  were  re- 
corded in  a  wrong  book.  This  rule,  therefore,  instead  of 
being  arbitrary  and  technical,  is  absolutely  essential  to 
any  effective  working  of  the  statutory  system."^ 

§  G8G.  Comments. — The  author  is  compelled  to  dis- 
sent from  the  views  expressed  by  Mr.  Pomeroy,  and 
from  the  doctrine  which  prevails  in  several  of  the  States, 
that  a  grantee  is  held  responsible  for  defects  in  the 
record  not  caused  by  his  act  or  through  his  procurance, 
but  by  an  officer  over  whom  he  can  exercise  no  controh 
Tlie  grantee,  by  depositing  his  deed  with  the  recording 
officer,  does  all  that  he  can  do.  He  complies  with  every 
requireuient  of  the  statute.     It  is  universally  conceded, 

*  2  romeroy'8  Eq.  Jur.,  §  654.  *  2  Pomeroy's  Eq.  Jur.,  §  653. 


§  686  REGISTRATION  OP  DEEDS.  932 

^v]len  his  deed  is  correctly  copied  into  the  records, 
that  notice  is  given  from  at  least  the  time  the  convey- 
ance is  deposited  with  the  proper  officer.  We  can  see 
no  reason  for  the  restriction  that  notice  shall  be  thus 
given  only  on  condition  that  the  deed  is  subsequently 
correctly  copied.  If  the  grantee,  by  depositing  the  deed 
with  the  recorder,  has  given  the  notice  required  of  him 
by  the  statute,  and  has,  by  this  step,  obtained  all  the 
priority  and  acquired  all  the  rights  of  a  purchaser  whose 
deed  is  first  recorded,  why  should  his  title  afterward 
become,  by  the  carelessness,  or,  perhaps,  fraudulent  de- 
sign of  the  recording  officer,  subordinate  to  that  of  an- 
other, who,  on  equitable  grounds,  aside  from  the  arbitrary 
provisions  of  the  statute,  can  be  entitled  to  no  more 
favorable  consideration  than  he?  It  cannot  be  said  that 
the  permanent  and  continued  existence  of  the  record  is 
essential  to  preserve  the  priority  that  a  purchaser  obtains 
by  the  due  record  of  his  instrument.  For  as  we  point 
out,  in  a  following  section,  the  subsequent  destruction  of 
the  book  in  which  the  deed  is  recorded,  by  fire,  the  mad 
caprice  of  a  mob,  the  mishaps  of  war,  or  the  hand  of 
some  person  who  desires  its  destruction  for  selfish  and 
fraudulent  purposes,  cannot  deprive  the  record  of  the 
efiect  of  giving  constructive  notice,  acquired  by  the  orig- 
inal registration.  When  the  record  is  destroyed,  as  a 
matter  of  fact,  it  must  cease  to  give  notice.  Still  it  is 
considered,  on  the  soundest  logic  and  reason,  that  when  a 
person  has  filed  his  deed  for  record,  he  has  complied 
with  the  law,  and  cannot  be  affected  by  the  destruction 
afterward  of  the  record.  Why,  then,  should  he  be  held 
responsible  when  the  record  is  not  totally  destroyed,  but 
rendered  imperfect  by  the  act  of  a  public  officer,  whose 
acts  he  cannot  supervise?  Again,  the  recording  acts  are 
intended  for  the  benefit  of  subsequent  purchasers  and 
encumbrancers.  The  first  grantee  requires  no  protection. 
By  the  principles  of  the  common  law,  in  the  absence  of 
statutory  regulation,  he  succeeds  by  his  deed  to  all  the 
title  of  his  grantor,  and  unless  the  law  places  upon  him 


933  BEGISTRATION    OF    DEEDS.  §  686 

the  obligation  of  doing  some  particular  act,  his  deed  on 
common-law  principles  is  good  against  everybody.  The 
second  purchaser  can  succeed,  so  far  as  the  question  of 
title  alone  is  concerned,  only  to  the  interest  of  his  grantor, 
and  if  that  has  been  antecedently  conveyed,  he,  by  a  sec- 
ond conveyance,  can  acquire  nothing.  But  for  the  pro- 
tection of  the  subsequent  purchaser,  the  law  requires  the 
first  grantee  to  give  notice  of  his  deed  by  procuring  its 
registration,  or  to  suffer  the  consequence  of  its  postpone- 
ment to  the  conveyance  of  another,  who  deals  with  the 
same  grantor  in  good  faith  and  without  notice  of  such 
prior  deed.  Now,  it  is  obvious  that  the  registration  laws 
are  intended  for  the  benefit  of  the  subsequent  purchaser, 
and  it  seems  to  us  a  reasonable  rule,  that  if  the  first 
grantee  does  all  that  he  has  the  power  to  do  to  secure  to  sub- 
sequent purchasers  the  benefit  of  this  notice  by  the  record, 
he  should  not  be  held  responsible  because  a  public  officer 
failed  to  do  his  duty.  It  is  true,  that  it  may  be  hard  to  de- 
clare that  a  purchaser  who  has  parted  with  his  money,  on 
the  assurance  given  by  the  records  that  the  grantor  pos- 
sessed title,  acquires  nothing  because  the  records  are  incor- 
rect, and  do  not  show  a  prior  conveyance.  It  may  indeed, 
be  said  that  to  declare  such  a  rule  will  cause  purchasers 
to  lose  faith  in  the  records,  and  will  retard  the  sale  of  prop, 
erty.  But  it  must  be  remembered  that  it  is  equally  hard 
to  say  that  the  first  purchaser  must  lose  the  property  that 
he  has  purchased  when  he  has  complied  strictly  with 
every  provision  of  the  statute,  and  has  not  been  guilty  of 
the  slightest  negligence.  One  of  two  innocent  persons 
must,  of  necessity,  be  damaged,  and,  in  our  judgment,  the 
loss  should  fall  upon  the  second  purchaser  rather  than 
u[)on  the  first.  And  this  loss  is  not  so  severe  as  at  first 
glance  it  may  seem.  He  can  recover  back  the  purchase 
money  for  a  failure  of  consideration,  and  he  has  his  rem- 
eily  against  the  recording  officer  for  his  dereliction  of 
duty,  and  in  several  of  the  States  severe  penalties  are  pre- 
scribed for  the  execution  of  a  second  deed  of  the  same 
property  by  the  same  grantor  with  intent  to  defraud  a 


§   6S7  REGISTRATION    OF    DEEDS.  934 

prior  purchaser.  On  the  whole,  while  on  this  question 
the  authorities  are  divided,  and  either  view  is  supported 
by  a  number  of  well-considered  cases,  yet  we  think  the 
most  reasonable  rule  is  the  one  we  have  stated.  While 
this  is  our  opinion,  still  it  must  be  confessed  that  neither 
view  can  be  said  to  be  supported  by  the  preponderance 
of  authority. 

§  687.  Effect  of  mistake  in  copying-  deed  ^vlien  con- 
sidered recorded  as  soon  as  filed. — In  those  States  in 
which  the  rule  prevails  that  a  deed  is  considered  in  law 
recorded  the  moment  it  is  deposited  with  a  proper  officer 
for  registration,  it  follows,  as  a  natural  conclusion,  that 
any  error  in  transcribing  the  deed  cannot  injure  the 
grantee.  A  married  woman  conveyed  land  by  deed,  and 
the  deed  was  acknowledged  and  recorded.  Twelve  years 
after  it  was  recorded  it  was  supposed  to  have  a  defective 
acknowledgment,  and  a  copy  of  the  deed  was  obtained 
from  the  recorder's  office,  which  the  grantor  acknowl- 
edged to  be  her  act  and  deed  for  the  purposes  therein 
mentioned,  she  then  being  a  widow.  The  copy  of  the 
deed  was  returned  properly  acknowledged  and  given  to 
the  recorder  to  be  recorded.  The  recorder  did  not  tran- 
scribe this  copy  and  the  certificate  of  acknowledgment  in 
their  entirety,  but,  acting  under  the  impression  that  the 
original  deed  was  already  recorded,  he  deemed  it  un- 
necessary to  re-record  that,  but  simply  added  upon  the. 
record  the  certificates  annexed  to  the  deed,  with  a  refer- 
ence to  the  original  deed.  The  court  held  that  if  a  widow 
by  reacknowledging  a  void  deed  executed  by  her  while 
married  gives  it  validity,  that  it  is  sufficient  if  she  ac- 
knowledge it  to  be  her  deed,  without  re-signing  it;  and 
when  the  deed  is  left  for  record,  the  grantee's  rights  are 
protected  though  the  officer  records  only  a  portion  of  it.^ 

*  Riggs  V.  Boylan,  4  Biss.  445.  Said  the  court:  "The  duty  of  the  re- 
corder was  to  re-record  the  deed  that  was  handed  to  him  in  1839,  with 
the  added  certificates,  and  I  think  that  the  deed  having  been  given  to 
liim  to  be  recorded,  and  his  duty  being  to  record  it,  and  he  having  re- 
corded nothing  but  the  certificates,  with  a  reference  to  the  original,  that 


935  REGISTRATION    OF    DEEDS.  §  688 

A  mistake  in  transcribing  a  mortgage,  by  which  it  is 
made  to  appear  as  security  for  a  smaller  amount  than 
that  named  in  it,  does  not,  as  against  subsequent  pur- 
chasers and  encumbrancers,  impair  its  eflficiency.^ 

§  688.      Effect  of  mistalse  where  opposite  view  prevails. 

Where  it  is  held  to  be  the  duty  of  a  grantee  to  see  that 
his  deed  is  properl}'  spread  upon  the  records,  subsequent 
purchasers  are  charged  with  such  notice  only  as  they  ac- 
tually have  or  obtain  from  an  inspection  of  the  records. 
If,  for  instance,  the  recorder,  by  mistake,  writes  in  the 
record  the  name  of  another  person  as  the  grantor  in  the 
deed  in  the  place  of  the  true  grantor,  the  deed  in  Ohio  is 
not  considered  duly  recorded,  and  will  not  charge  a  sub- 
sequent purchaser  with  notice.^  In  the  case  cited,  the 
recorder's  mistake  in  recording  the  deed,  consisted  in 
recording  the  name  of  the  grantor  as  Samuel  Granger, 
when  the  name  in  the  deed,  and  the  true  name,  was 
Lemuel  Granger.^     Where  a  mortgage  is  given  as  security 

the  rights  of  the  purchaser  must  be  considered  as  having  the  shield  of 
the  hiw  thrown  upon  them,  and  the  deed  did  transfer  the  title." 

1  Mims  V.  Mims,  35  Ala.  23;  Dubose  v.  Young,  10  Ala.  365.  See  Mus- 
ser  V.  Hyde,  2  Watts  &  S.  314;  Wood's  Appeal,  82  Pa.  St.  116;  s.  c.  16 
Am.  Law  Reg.  255;  Brooke's  Appeal,  64  Pa.  St.  127,  and  cases  cited. 

*  Jennings  v.  Wood,  20  Ohio,  261. 

'  Jennings  v.  Wood,  supra.  The  court  on  this  point  said:  "Did  Jen- 
nings have  notice  of  his  title  placed  on  record?  He  did  not.  The  deed 
put  on  record  purported  to  be  a  deed  from  a  different  person.  It  is  only 
by  the  names  of  the  parties  conveying  that  a  claim  of  title  can  be  traced. 
Take  the  title  in  controversy  as  an  illustration.  If  a  person  had  gone  to 
the  record  to  ascertain  tlie  situation  of  this  title;  if,  commencing  at  the 
source  of  titles,  he  had  traced  it  down  from  grantee  to  grantee,  until  he 
should  have  found  that  the  title  had  passed  to  Lemuel  Granger,  then  all 
that  he  would  have  to  do  to  ascertain  whether  the  record  showed  any 
conveyance  from  Lemuel  Granger,  would  be  to  examine  the  index  to 
ascertain  whether  any  conveyance  had  been  made  by  Lemuel  Granger; 
if  none  such  appeared,  then  the  record  would  give  notice  of  no  such  con- 
veyance. It  would  give  him  notice,  however,  that  the  title  was  still  in 
Lemuel  Granger.  The  reason  that  a  party  is  chargeable  with  construc- 
tive notice  is,  that  by  an  examination  of  the  record,  he  will  have  actual 
notice.  The  deed  actually  shown  on  record  was  by  a  person  who  had 
nothing  to  do  with  the  title,  and  was,  to  all  intents  and  purposes,  a 
different  conveyance  from  the  one  by  which  Jennings  claims.     But  it  is 


§  089  REGISTRATION  OF  DEEDS.  936 

for  the  payment  of  three  thousand  doHars,  but  upon  the 
record  it  appears  by  mistake  to  have  been  given  for  three 
hundred  dolUirs,  it  is  notice  to  subsequent  purchasers 
only  for  the  sum  expressed  in  the  registry.^  Where  a 
deed  was  executed  for  four-tenths  of  an  interest  in  land, 
but  by  mistake  in  the  registration  it  appeared  on  the 
records  to  be  for  a,  four teeiith  mter est  only,  it  was  held  that 
constructive  notice  was  given  of  the  conveyance  of  the 
land  to  the  extent  of  one-fourteenth  part  only.^  It  has  also 
been  decided  that  if  a  town  clerk  copies  a  deed  delivered 
to  him  for  registration  in  a  book  in  which  no  deeds  had 
been  recorded  for  upward  of  twelve  years,  and  for  the 
purpose  of  concealment  and  fraud,  does  not  insert  the 
names  of  the  parties  to  the  deed  in  the  index,  such  a 
deed  is  not  recorded,  and  it  is  held  that  no  notice  is 
given  thereby  to  subsequent  purchasers  and  attaching 
creditors.^ 

§  689.  Contiuued. — And  if  a  deed  for  the  east  half  of 
a  lot  is  recorded  as  a  deed  of  the  west  half,  a  subsequent 
purchaser  of  the  east  half,  who  has  no  notice  that  an 
error  has  been  committed  in  the  registration  of  the  deed, 
will  under  this  view  be  fully  protected.'*  So  where  a  deed 
conveys  one-half  of  the  grantor's  individual  right,  title, 
and  interest,  into  and  to  a  certain  piece  of  land,  but,  by 
mistake  of  the  recorder,  it  is  registered  as  a  conveyance 
of  one-half  of  the  grantor's  undivided  right,  subsequent 
bona  fide  purchasers  are  charged  with  notice  of  the  con- 
veyance of  only  the  estate  shown  by  the  records.^     Under 

said  that  Jennings  had  a  good  deed,  and  that  he  had  done  all  that  it 
was  necessary  for  him  to  do;  that  the  mistake  was  that  of  tlie  recorder, 
and  that  he  should  not  suffer  for  the  default  of  the  officer.  It  may  be  a 
hardship  on  Jennings,  it  no  doubt  is;  but  here  one  of  two  innocent  per- 
sons must  suffer;  and  whenever  this  is  the  case,  the  rule  is,  that  the 
misfortune  must  lie  where  it  has  fallen,  it  must  rest  on  the  person  in 
whose  business  and  under  whose  control  it  happened." 

1  Frost  V.  Beekman,  1  Johns.  Ch.  288. 

^  Brydon  v.  Campbell,  40  Md.  331. 

'  Sawyer  v.  Adams,  8  Vt.  172;  30  Am.  Dec.  459. 

*  Sanger  v.  Craigue,  10  Vt.  555. 

*  Miller  v,  Bradford,  12  Iowa,  14. 


937  REGISTRATION    OF   DEEDS.  §  G90 

tlie  Wisconsin  statute,  a  deed  must  be  attested  bj' two  wit- 
nesses to  entitle  it  to  be  recorded.  It  is  held  in  that 
State  that  if  an  error  is  made  in  recording  a  convej^ance 
at  length,  by  omitting  to  copy  the  attestation,  subsequent 
purchasers  and  mortgagees  are  not  charged  with  con- 
structive notice/  Under  this  view,  where  a  mortgage 
covering  the  northwest  quarter  of  a  tract  of  land  was 
made  to  appear  in  the  record  as  a  mortgage  of  the  north- 
east quarter,  it  was  held  that  a  grantee  in  a  subsequent 
deed  of  tho  northwest  quarter  was  not  afiFected  by  the 
mortgage.^ 

§  690.  Destruction  of  record. — After  a  deed  has  been 
once  properly  recorded,  the  destruction  of  the  book  in 
which  it  is  recorded  does  not  affect  the  constructive  no- 
tice afforded  by  the  original  record,^     When  a  party  has 

'  Pringle  V.  Dunn,  37  Wis.  449;  19  Am.  Rep.  772.  It  appeared  in 
this  case,  however,  in  a  suit  upon  a  mortgage  defectively  recorded  in 
this  respect,  that  one  of  the  defendants  at  the  time  he  purchased  a  part 
of  the  mortgaged  premises  "  had  heard  that  tliere  was  a  defective  rail- 
road mortgage  upon  them,  but  did  not  look  for  it,  because  his  abstract 
did  not  show  it."  The  court  held  that  under  such  circumstances,  he 
must  be  deemed  to  have  had  actual  notice  of  the  mortgage. 

*  White  V.  McGarry,  2  Flipp.  C.  O.  572. 

'  Steele  v.  Boone,  75  111.  457  j  Armentrout  v.  Gibbons,  30  Gratt.  632; 
Gammon  v.  Hodges,  73  111.  140;  Heaton  v.  Prather,  84  111.  330;  Curyea 
V.  Berry,  84  111.  600;  Myers  v.  Buchanan,  46  Miss.  397.  And  see  Dem- 
ing  V.  Miles,  35  Neb.  739;  37  Am.  St.  Rep.  464;  Alvis  v.  Morrison,  63 
111.  181;  14  Am.  Rep.  117;  Shannon  v.  Hall,  72  111.  354;  22  Am.  Rep. 
146;  Taylor  v.  Franklin  Sav.  Bank,  50  Fed.  Rep.  289;  Paxson  v.  Brown, 
61  Fed.  Rep.  874;  Hyatt  v.  Cochran,  69  Ind.  436;  Addis  v.  Graham,  88 
Mo.  197;  Franklin  Sav.  Bank  v.  Taylor,  1.31  111.  376;  Thomas  v.  Han- 
son, 59  Minn.  274 ;  61  N.  W.  Rep.  135.  The  fact  that  the  deed  has  been 
recorded  may  be  shown  by  the  certificate  of  the  recorder,  or  by  the 
index-book  or  other  secondary  evidence :  Smith  i;.  Lindsay,  89  Mo.  76; 
1  S.  W.  Rep.  88;  Alvis  v.  Morrison,  63  111.  181 ;  14  Am.  Rep.  117;  Cowles 
V.  Hardin,  91  N.  C.  231;  Paxson  v.  Brown,  61  Fed.  Rep.  874;  Stebbins 
V.  Duncan,  108  U.  S.  32.  But  see  Weber  v.  Moss,  3  Tex.  Civ.  App.  13, 
21  S.  W.  Rep.  609,  where  it  is  held  that  if  the  record  of  a  deed  is 
partially  d.slroyed  so  as  not  to  show  that  the  deed  was  properly  acknowl- 
edged for  registration,  such  record  does  not  charge  subsequent  pur- 
chasers with  constructive  notice  of  the  deed.  In  Myers  v.  Buchanan, 
46  Miss.  397,  the  court  said:  "We  have,  however,  no  hesitation  in  afTirm- 
ing  the  general  proposition  propounded  by  the  complainant,  and  hold 


§  690  EEGISTKATION    OF   DEEDS.  938 

placed  liis  deed  upon  record,  he  has  complied  with  all  the 
requirements  of  the  law.     After  the    record  has  been  de- 
stroyed by  fire,  he  is    not  compelled  to  record  his  deed  a 
second  time,  or  to  do  any  other  act  to  notify  subsequent 
purchasers,  in  order    to  be  protected   in  his  rights  under 
his  deed.^     "It  is  true,"  said  Mr.  Justice  Craig,  "  a  party 
who  owns  real  estate  in  Cook  county  may,  if  he  thinks 
proper,  in  case  the  record  of  his  title  has  been  destroyed, 
again  record  his  title  papers;  yet  he  is  under  no  legal  ob- 
ligation to  incur  that  expense.     It  is  no  doubt  true  that 
a  large  number  of  deeds  and  other  instruments   of  writ- 
ing, relating  to  land  in  Cook  county,  which  were  recorded 
previous  to  the  fire,  have  been  lost  or  destroyed,  and  could 
not  be  produced.     To  hold,  therefore,  that  the  owner  of 
property  was  required  to    again    record  the  title  papers, 
or  be  liable  at  any  moment  to  lose  the  title,  would  be  es- 
tablishing a  precedent  of  the  most  dangerous  character. 
The  result  of  the  doctrine    contended  for    by  appellant 
would  compel,  in  numerous  instances,  parties  who  owned 
real  estate  in  Cook  county  to  take  immediate  possession, 
or  otherwise  their  titles  would  be  at  the  mercy  of  subse- 
quent purchasers."'' 

the  deed  of  trust  in  favor  of  Myers,  in  1861,  constructive  notice  to  all  the 
world,  notwithstanding  the  disordered  condition  of  the  records  in  1865. 
It  would  be  monstrous  to  declare  a  lien,  acquired  by  a  duly  recorded 
mortgage,  lost  by  subsequent  partial  or  total  destruction  of  the  records. 
Such  a  rule  would  subject  every  lien  in  the  State  to  the  hazards  of  acci- 
dental fire,  the  caprice  of  incendiaries,  and  the  casualties  of  war." 

1  Gammon  v.  Hodges,  73  111.  140.  See  Hyatt  v.  Cochran,  69  Ind.  436. 
Under  the  statute  of  Texas,  where  county  records  are  destroyed,  deeds 
which  are  preserved  must  be  recorded  within  four  years,  and  unless  so 
re-recorded,  the  first  record  does  not  constitute  notice  as  against  a  bona 
fide  purchaser:  Magee  v.  Merriman,  85  Tex.  105;  19  S.  W.  1002;  O'Neal 
V.  Pettus,  79  Tex.  255;  Weber  v.  Mass,  3  Tex.  App.  13;  21  S.  W.  Rep. 
609;  Barcus  v.  Bringham,  84  Tex.  538;  19  S.  W.  Rep.  703;  Salmon  v. 
Huff,  80  Tex.  133;  15  S.  W.  Rep.  257. 

*  See  Gammon  v.  Hodges,  supra.  See,  also,  Shannon  v.  Hall,  72  111. 
354;  22  Am.  Rep.  146;  Alvis  v.  Morrison,  63  111.  181;  14  Am.  Rep.  117. 
In  Texas  it  was  held  that  where  one  had  recorded  his  deed,  and  the 
records  were  destroyed,  his  failure  to  take  steps  to  have  his  conveyance 
again  recorded,  is  not  negligence,  as  against  a  subsequent  purchaser 
from  the  original  vendor,  who,  not  having  paid  the  price  in  full,  could 


939  PvEGISTRATION    OF    DEEDS.  §§  691,  692 

§  691 .  Proof  of  deed  where  record  destroj  ed. — Where 
the  record  has  been  destroyed,  and  it  becomes  material  to 
prove  the  execution  of  the  deed,  it  may  be  proved  in  most 
instances,  by  the  production  of  the  deed  itself,  and  hence 
little  difficulty  will  generally  be  experienced.  But  wheu 
the  record  has  been  destroyed  and  the  deed  lost,  its  execu- 
tion must  be  proven  like  that  of  any  other  lost  paper,  by 
secondary  evidence.  What  evidence  will  suffice  to  prove 
this  fact  is  a  matter  to  be  determined  by  the  court  or  jury, 
and  of  course  it  is  impossible  to  lay  down  a  universal  rule 
as  to  the  amount  of  evidence  that  will  be  required  to 
establish  this  fact.  It  has  been  decided,  however,  where 
a  deed  and  its  record  had  both  been  destroyed  by  fire,  that 
its  execution  is  sufficiently  proven  by  the  testimony  of  a 
clerk  of  an  abstract  firm,  that  the  deed  had  been  filed  for 
record,  and  that  the  day  after  its  execution  he  had  made  a 
minute  of  it,  which  he  produced,  and  the  testimony  of  a 
partner  of  the  person  claiming  to  be  grantee  that  the  deed 
was,  in  his  opinion,  executed  in  his  office  and  was  taken 
away  for  the  purpose  of  acknowledgment.  Such  testimony 
will  prevail  against  the  positive  denials  of  the  grantors 
that  they  at  any  time  had  executed  such  a  deed.^ 

§  692.     Index  as  part  of  tlie  record — Comments. — The 

index  is  a  very  important  aid  to  searchers  in  enabling 
them  to  ascertain  whether  a  particular  individual  has  con- 
veyed his  title.  Witiiout  the  assistance  furnished  by  the 
index,  it  would  be  practically  impossible  for  an  ordinary 
person,  with  no  peculiar  means  of  information,  to  learn 
from  the  inspection  of  the  records  the  condition  of  a  title. 
The  index  is  generally  required  by  the  registry  laws  to  be 
kept  as  one  of  the  official  records.  In  connection  with 
the  question  we  have  just  discussed,  the  inquiry  arises,  is 
an  index  placed  on  the  same  footing  as  the  record-book 
itself,  and  what  consequence,  if  any,  results  from  a  mis- 
take in  the  index  by  which  an  innocent  purchaser  may 

not  claim  the  oquity  of  a  bona  fide  purchaser:  Evans  v.  Templeton,  69 
Tex.  375;  5  Am.  St.  Rep.  71. 

1  Heacock  v.  Lubuke,  107  111.  396. 


§  G93  REGISTRATION    OF    DEEDS.  940 

be  misled?  On  tliis  question,  we  shall  encounter,  to  some 
extent,  the  same  conflict  in  the  decisions,  that  we  found 
existed  on  the  question  as  to  the  person  who  should  suffer 
for  an  error  in  the  transcription  of  the  original  deed  into 
the  records. 

§  693.  View  that  deed  improperly  indexed  does  not 
g-ive  constructive  notice. — In  Pennsylvania,  in  one  case, 
the  court  held  that  a  conveyance  not  correctly  indexed 
was  not  constructive  notice.^  But  as  the  case  was  decided 
on  the  ground  that  the  subsequent  purchaser  had  actual 
notice  of  the  prior  conveyance,  it  was  unnecessary  to  pass 
upon  this  question.  Mr.  Chief  Justice  Woodward,  how- 
ever, remarked:  "But  it  was  not  duly  indexed,  and  not 
therefore,  constructive  notice  to  third  parties.  As  a 
guide  to  inquirers,  the  index  is  an  indispensable  part  of 
the  recording,  and  without  it,  the  record  affects  no  party 
with  notice."^  In  a  later  case  in  the  same  State  this 
question  incidentally  arose,  but  the  court  did  not  decide 
it.  The  deed  had  been  properly  indexed  in  the  separate 
index,  but  not  in  a  general  index  which  the  officer  kept 
for  convenience  of  searchers.  The  law  did  not  require 
the  recorder  to  keep  a  general  index.  The  court  held 
that  as  the  deed  was  indexed  in  the  particular  index  re- 
quired by  law  to  be  kept,  it  was  sufficient  to  give  notice 
but  observed:  "Whether  his  title  can  be  taken  from  him 
by  the  omission  to  enter  his  recorded  and  certified  deed 
in  the  particular  index,  may  admit  of  question,  but  we 
give  no  opinion  on  this  point. "^     The  view  that  a  deed 

^  Speer  v.  Evans,  47  Pa.  St.  141. 

*  S^.eer  v.  Evans,  47  Pa.  St.  141. 

»  Schell  V.  Stein,  76  Pa.  St.  398;  18  Am.  Rep.  416.  Mr.  Chief  Jus- 
tice Agnew  delivered  the  opinion  of  the  court,  and  said:  "The  ques- 
tion presented  by  the  record  in  this  case  is,  wliether  a  deed  regularly- 
acknowledged  or  proved,  and  recorded  in  the  proper  book,  and  in- 
dexed in  the  separate  index  appropriated  to  the  book,  but  not  in  the 
general  index  of  all  the  deed-books,  is  not  defectively  recorded.  If  it 
be,  the  conceded  principle  is  that  a  deed  defectively  registered  is  a 
nullity  as  to  subsequent  purcliasers  or  mortgagees.  There  is  no  law 
which  requires  the  recorder  to  keep  a  general  index  to  all  the  deed 


941  REGISTRATION    OF    DEEDS.  §  694 

incorrectly  indexed  does  not  give  notice  is  to  some  extent 
sanctioned  in  some  other  States.^ 

§  694.  Decisions  in  Iowa  on  this  question. — In  Iowa 
several  decisions  have  been  rendered  on  this  question, 

or  mortgage-books  in  his  office.  That  it  is  a  great  convenience,  and, 
in  the  populous  counties  of  the  State,  has  become  a  necessity,  is  evi- 
dent, but  it  is  the  province  of  the  legislature,  and  not  of  this  court,  to 
make  this  convenience  or  the  necessity  the  subject  of  law.  The  regis- 
tration of  deeds  is  purely  a  system  of  legal  institution,  and  not  of  com- 
mon right  or  abstract  justice.  At  common  law,  in  England,  there  was 
no  system  of  registration,  and  the  rule  between  claimants  of  the  same 
title  was  found  in  the  maxim,  prior  in  tempore  potior  est  injure.  In  this 
State  the  system  has  been  one  of  growth.  The  original  act  of  1715  did  not 
even  require  the  record  to  be  a  book.  The  recorder  was  to  provide  parch- 
ment or  good  large  books,  and  his  certificate  was  to  give  the  number  of 
the  book  or  roll.  No  provision  was  made  for  indexing  until  the  act  of 
1827,  which  was  applicable  to  other  offices  as  well  as  that  of  the  recorder. 
But  so  early  as  1775  the  law  required  a  bond  of  the  recorder  with  sufficient 
sureties,  which  was  to  be  held  for  the  use  of  'parties  that  shall  be  indem- 
nified or  aggrieved'  in  the  same  manner  as  sheriff's  bonds.  The  duty  of 
searches  is  that  of  the  officer,  not  of  parti*3S,  and  he  must  see  to  it  that 
no  mistakes  are  made  in  searching.  The  act  of  1827  imposed  no  duty  as 
to  indexes,  except  to  have  one  for  each  and  every  book.  If  greater  con- 
venience induces  the  recorder  to  keep  a  general  index,  to  save  the  hand- 
ling of  different  books,  and  he  omits  to  index  a  deed  in  it,  and  thereby 
overlooks  a  deed  regularly  recorded  and  duly  indexed  in  the  proper 
book,  his  certificate  makes  him  liable  to  the  party  who  is  injured  by  it. 
But  surely  the  one  who  has  had  his  deed  duly  acknowledged  or  proved, 
recorded  in  the  proper  book,  and  certified  under  the  hand  and  seal  of  the 
office  of  the  recorder  in  due  form,  has  done  all  the  law  requires  of  him. 
On  what  principle  of  law  or  sound  reason  shall  he  be  required  to  super- 
vise the  officer's  gratuitous  indexing  of  deeds  in  an  index  not  required 
by  law?  He  is  not  to  be  presumed  to  be  familiar,  and,  as  a  fact,  nine 
out  of  ten  persons  are  not  familiar,  with  the  system  of  the  office.  All 
the  citizen  can  be  bound  to  know  is  the  law,  and  he  is  warned  by  no  law 
that  there  must  be  kept  a  general  index." 

*  See  Barney  v.  McCarty,  15  Iowa,  510;  83  Am.  Dec.  427;  Whalley 
V.  Small,  25  Iowa,  188.  See,  also,  Handley  v.  Howe,  22  Me.  560;  McLaren 
V.  Thompson,  40  Me.  284.  Where  the  statute  requires  the  recording 
officer  to  keep  indexes  in  which  the  names  of  grantors  must  be  placed 
alphabetically,  a  tax  deed,  until  it  is  indexed,  is  held  not  to  be  recorded 
nor  admissible  in  evidence:  Hiles  v.  Atlee,  80  Wis.  219;  27  Am.  St.  Rep. 
32 ;  Howe  v,  Thayer,  49  Iowa,  154.  In  Wisconsin,  the  omission  to  enter 
a  description  of  the  land  under  the  appropriate  head  in  the  general  in- 
dex is  cured  by  transcribing  at  length  the  deed  containing  such  descrip- 
tion in  the  proper  record :  St.  Croix  etc.  Co.  v.  Ritchie,  73  Wis.  409.  See, 
also,  Oconto  Co.  v.  Gerrard,  40  Wis.  317. 


§  694  REGISTRATION    OF    DEEDS.  942 

based  upon  the  statutes  in  force  in  that  State.    In  one  case^ 
the  court  said  that  an  analysis  of  the  statute  showed  that 
the  recorder  was  required  to  perform  the  following  acts 
with  respect  to  all  instruments  required  to  be  recorded: 
"1.  File  all  deeds,  etc.,  presented  to  him  for  record,  and 
note  on  the  back  of  the  same  the  hour  and  day  they  were 
presented  for  record."     "  2.  Keep  a  fair  book  on  which 
he  shall  immediately  make  an  entry  of  every  deed,  giving 
date,  parties,   description   of  land,  dating   it  on  the  day 
when  it  was  filed  in  his  office."     *'  3.  Record  all  instru- 
ments in  regular  succession."     "4.  Make  and  keep  a  com- 
plete alphabetical  index  to  each  record-book,  showing  page 
on  which  each  instrument  is  recorded,  with  the  names  of 
the  parties  thereto."     The  opinion  of  the  court  was  de- 
livered by  Mr.  Justice  Dillon,  who  said  that  reading  this 
statute  with  the  others  on  the  same  subject,  the  court  w^as 
of  the  opinion  that  in  order  to   constitute  a  compliance 
with  their  requirements,  it  was  necessary  that  each  of  the 
following   steps    should    be    substantially   observed:     "1. 
The  instrument  must    be  deposited  or  filed  with  the  re- 
corder for  record.     He  thereupon  notes  the  fact,  and  'the 
hour  and  day,'  on  the  back  thereof,  and   the  day  on  '  the 
fair-book,'  as  it  is   styled,  and  retains  the  instrument  in 
his  office.    The  instrument  itself  thus  remaining  on  file  in 
his  office  with  the  indorsement  upon  it,  and  the  entries 
in  the  '  fair-book,'  which  are   required  to  be  immediately 
made,  constitute  the  notice  until  the  instrument  is  actually 
extended   upon  the  records.     2.  The    next    step    in    the 
process  is  the  recording,  that  is,  the  copying  of  the  in. 
strument  at  large  into  the  '  record-book,'  and  noting  in  it 
the  precise  time  when  it  was  filed  for  record.     The  object 
of  this  noting  is  that  the  record  may  show  on   its  face 
when  the  notice  commences.     3.  The  third  and  final  step 
is  the  indexing  of  the  instrument  so  recorded.     The  stat- 
ute prescribes  the  requisites  of  the  index.     It  shall  bo  a 
complete    alphabetical    index    to    each  record-book,   and 
shall  give  the  names  of  the  parties,  and  show  the  page 

1  Barney  v.  McCarty,  15  Iowa,  510;  83  Am.  Dec.  427. 


943  REGISTRATION    OF   DEEDS.  §  694 

where  each  instrument  is  recorded.  The  paging  cannot, 
of  course,  be  given  until  the  deed  is  actually  transcribed 
into  the  record-book,  and  up  to  this  time  it  remains  on 
file.  When  recorded  and  indexed  the  deed  may  be  with- 
drawn, and  the  record  takes  its  place,  and  constructively 
imparts  notice  to  the  world  of  its  existence  and  contents." 
The  justice  then  remarked:  "Keeping  in  view  alike  the 
well-known  objects  and  the  enlightened  policy  on  which 
the  registry  acts  are  based,  as  well  as  the  language  and 
requirements  of  the  several  statutes  above  cited,  the  court 
are  of  the  opinion  that  all  three  of  these  steps  are  essen- 
tial, integral  parts  of  a  complete,  valid  registration."  He 
then  examined  several  cases  cited  by  the  counsel  for 
the  respective  parties,  and  concluded  the  opinion  by 
observing:  "To  hold  that  an  index  is  not  essentially 
part  of  a  valid  and  complete  registration  in  this  State, 
would  overlook  the  uniform  practice  of  relying  wholly 
upon  it  to  find  the  names  of  the  various  owners  in  trac- 
ing titles,  and  would  also  ignore  the  fundamental  design 
of  the  recording  acts,  which  is  to  give  certainty  and 
security  to  titles,  by  requiring  all  deeds  and  liens  to  be 
made  matters  of  public  record,  and  thus  discoverable  by 
all  persons  who  are  interested  in  ascertaining  their 
existence,  and  who  will  examine  the  records  in  the 
mode  which  the  law  has  pointed  out."  It  was  accord- 
ingly held  that  the  omission  to  index  a  conveyance 
deprived  the  record  of  imparting  constructive  notice 
of  its  contents.'  But  where  a  conveyance  was  filed 
in  the  proper  office,  and  entered  of  record  on  page 
"546"  of  the  proper  book,  but  the  index  entry,  while  show- 
ing the  names  of  the  grantor  and  grantee,  and  substan- 
tially the  "nature  of  the  instrument,"  and  the  book  in 
which  the  record  was  made,  stated  the  page  of  the  record 
as  "596,"  it  was  held  that  the  index  was  ojjerative  as 
constructive  notice  of  the  acts  which  would  be  disclosed 
by   an    examination    of    the    record.^      In    another    case 

■  Barney  v.  McCarty,  15  Iowa,  510;  83  Am.  Dec.  427. 
'  Barney  r.  Little,  15  Iowa,  527.     Tlie  court  cited  with  approval   the 
former  caae  of  Barney  v.  McCarty,  15  Iowa,  510,  83  Am.  Dec.  42/,  and 


§  694  REGISTRATION    OF   DEEDS.  944 

a  deed  liad  been  filed  for  record,  and  had  remained  in  tlie 
recorder's  office  from  tlie  time  it  was    filed,  but  it  had 
never  been  actually  recorded  or  indexed.     The  court  held 
that  the  mere  filing  was  not  sufficient  to  impart  construe, 
tive  notice/     The  court  decided  this  case  on  the  authority 
of  Barney,  v.  McCarty  and  said:  "The  only  point  of  dif- 
ference between  the  facts  in  that  case  and  the  one  at  bar 
is,  that  while  the  instrument   there  was  copied  upon  the 
record,  and  taken  from  the  recorder's  office,  here  it  was 
not  copied,  and  remained  in  the  office.     The  doctrine  of 
that  case  is  clearly  applicable  to  this.     If  the  recording  of 
an  instrument  duly  filed   is  insufficient  without  an  index 
thereof,  certainly  filing  without  either  the  index  or  the 
recording  would,  under  that  decision,  fail  to  impart  no- 
tice." ^     A  purchaser  of  a  piece  of  land   executed  a  mort- 
gage back  as  security  for  the  payment  of  the  purchase 
money.     But  by  mistake  the  land  that  was  described  was 
an  entirely  different  tract.     It  was  held  that  a  subsequent 
purchaser  was  not  charged    with  constructive  notice   of 
the  recitals  in  the  deed,  which  miglit  be  sufficient  to  place 
him  upon  inquiry,  when  the  index  required  by  law  to  be 
kept  did  not  contain  such  recitals.^     But  a  description  in 
the  proper  column  in  the  index  as  "  certain  lots  of  land," 
the  record  being  complete  in  other  respects,  was  held  suf- 
ficient to  convey  constructive  notice  to  subsequent  pur- 
said  :  "  It  is  a  purchaser's  duty  to  examine  the  records.    The  law  places 
this  means  at  his  disposal.     It  requires  all  matters  affecting  titles  to 
appear  of  record.     If  he  omits  to  examine,  he  is  to  impute  the  loss,  if 
any,  to  his  own  indolence  or  folly :  Astor  v.  Wells,  4  Wheat.  466.     As- 
suming the  instrument  to  be  one  which  may  properly  be  registered,  the 
law  charges  him  with  a  knowledge  of  all  facts  which  an  ordinarily  care- 
ful examination  of  the  records  would  have  made  him  cognizant  of. 
Having  thus  settled  the  rule  which  is  to  be  applied,  the  court  cannot 
avoid  the  conclusion  that  if  the  appellants,  in  the  case  under  considera- 
tion, had  made  an  ordinary,  diligent,  skillful,  and  careful  examination 
of  the  records,  the  mortgage  in  question  would  have  been  discovered  to 
them." 

1  Whalley  v.  Small,  25  Iowa,  184.    See,  also,  Oconto  Co.  t?.  Jerrard, 
46  Wis.  317. 

2  Whalley  v.  Small,  25  Iowa,  184. 
'  Scoles  V.  Wilsey,  11  Iowa,  261, 


945  REGISTRATION    OF    DEEDS.  §  695 

chasers.^  And  it  was  also  held  that  where  the  words  "  see 
record  "  were  written  in  the  column  in  which  the  descrip- 
tion of  the  lands  should  have  been  placed,  a  subsequent 
purchaser  was  charged  with  notice.^ 

§  695.  View  tliat  mistake  in  index  has  no  effect  upon 
record. — In  Missouri,  although  the  rule  prevails  that  a 
deed  does  not  impart  constructive  notice  if  a  mistake  has 
been  made  in  the  record,^  yet  it  is  established  that  this 
result  does  not  follow  from  a  mistake  or  omission  in  the 
index.*  Wagner,  J.,  referring  to  the  registry  act  of  that 
State,  said:  **  The  general  nature,  object,  and  scope  of  the 
whole  act,  taken  together,  is  to  point  out  the  duty  of  the 
clerk,  not  only  in  the  making  of  a  proper  record  of  con- 
veyances, but  also  in  furnishing  facilities  for  their  dis- 
covery, examination,  and  use,  by  all  persons  interested 
in  them;  and  to  secure  the  due  performance  of  these 
duties  tlie  clerk  is  made  liable  to  the  party  injured  for 
the  neglect  of  them.  The  index,  which  it  is  the  duty  of 
the  clerk  to  make  out  and  preserve  in  a  book  for  that 
purpose,  seems  to  be  one  of  the  facilities  to  be  used  in 
making  search  for  the  record,  but  not  a  part  of  the  record 
itself.  It  is  his  duty  to  have  an  index,  and  to  enter  upon 
it  a  proper  reference  to  every  record  of  a  conveyance,  and 
for  any  neglect  to  do  so,  he  is  liable  to  the  party  aggrieved 
for  double  the  amount  of  damages  sustained.  But  it  is 
not  certain  that  any  one  will  be  injured  by  the  neglect, 
and  therefore  the  record  itself  should   not  be   held  void. 


*  Bostwick  V.  Powers,  12  Iowa,  456. 

*  White  V.  Hampton,  13  Iowa,  259.  For  other  cases  in  Iowa  upon  this 
question,  see  Calvin  v.  Bowman,  10  Iowa,  529 ;  Noyes  v.  Horr,  13  Iowa 
570;  Barney  v.  Little,  15  Iowa,  527;  Gwynn  v.  Turner,  18  Iowa,  1;  Howe 
V.  Thayer,  49  Iowa,  154;  Hilesi;.  Atlee,  80  Wis.  219;  27  Am.  St.  Rep.  82; 
49  N.  W.  Rep.  816. 

»  Terrell  v.  Andrew  County,  44  Mo.  309. 

*  Bishop  V.  Schneider,  46  Mo.  472 ;  2  Am.  Rep.  533 ;  Land  &  River 
Imp.  Co.  V.  Bardou,  45  Fed.  Rep.  706.  Filing  a  deed,  it  is  held  in 
North  Carolina,  constitutes  constructive  notice,  and  the  failure  of  the 
oflBcer  to  index  the  deed  as  required  by  statute  does  not  impair  its 
efficacy:  Davis  v.  Whitaker,  114  N.  C.  279;  41  Am.  St.  Rep.  793. 

Ueeds,  Vol.  II.  —co 


§  695  BEGISTRATION    OF    DEEDS.  946 

The    purchaser  may  take   his   deed,  relying  solely  upon 
the  representations  or  covenants  of  his  grantor,  without 
desiring  to  examine  the  records.     An   index  or  the  want 
of  it  will   obviously  be  of  no  importance  to  him.     So,  if 
without  making  any  search,  or  causing  any  to  be  made, 
a  person  should  rely  alone  upon  the   representations  of 
the  clerk,  that  the   title  was   clear,  and  these  representa- 
tions should  be  knowingly  false,  could  it  with  reasonable 
propriety  and   fairness  be   said   that  he  was  injured  by 
want  of  an  index?     Yet  in  these  cases,  if  the  argument 
advanced   be  correct,  though  no   one  is  injured    by  the 
failure  of  the  clerk  to   perform  his  duty  as  to  indexing, 
and  though   the   purchaser    has  had    his  deed  correctly 
transcribed  and  spread  upon  the  record,  still  the  record- 
ing  should   be   held  void.     In  my  opinion,  the    proper 
office  of  the  index  is  what  its  name  imports — to  point  to 
the  record — but  that  it  forms  and  constitutes  no  part  of 
the  record.     The  statute  states,  without  reserve  or  quali- 
fication, that  when   an  instrument  is  filed   with   the  re- 
corder and  transcribed  on  the  record,  it  shall  be  considered 
as  recorded  from  the  time  it  was  delivered.     From  that 
time  forth  it  is  constructive  notice  of  what  was  actually 
copied.  A  subsequent  section  for  the  purpose  of  facilitating 
research,  besides  recording,  devolves  a  separate,  distinct, 
and  independent  duty  upon  the  recorder,  and  in  the  event 
of  a  noncompliance  with  that  duty,  the  party  injured  has 
his  redress.     The  purchaser  or  grantee,  when  he  has  de- 
livered his  deed  and  seen  that  it  was  correctly  copied,  has 
done  all  the  law  requires  of  him  for  his  protection;  and 
if  any  other  person  is  injured  by  the  fault  of  the  recorder 
in  not  making  the  proper  index,  he  must  pursue  his  rem- 
edy against  that  officer  for  his  injury."  '     In  Georgia,  the 
court  considered  that  the  index  was  intended  for  the  con- 
venience of  the  searcher.     "If  the  clerk  fails  to  do  his 
duty,  he  injures  those  who  desire  to  search.     The  duty  is, 
therefore,  to  the  searcher  and  to  the  public,  and  not  to  the 
holder  of  the  deed.    And  this  has,  as  we  think,  always  been 

1  In  Bishop  v.  Schneider,  46  Mo.  472;  2  Am.  Rep.  533. 


9-i7  REGISTRATION    OF    DEEDS.  §  696 

the  understanding  of  the  law  in  this  State."  ^  The  rule 
that  generally  prevails  is,  that  the  index  is  not  a  part  of 
the  record,  and  that  a  grantee  cannot  suffer  for  any  mis- 
take in  it.^ 

§  696.  Comments. — In  those  States  where  a  mistake 
in  the  record  does  not  affect  its  power  of  imparting  con- 
structive notice,  a  mistake  in  the  index  cannot  injure  the 
grantee.  In  Iowa,  the  decisions  are  founded  upon  the 
express  language  of  the  statutes  of  that  State.  We  think 
that  whether  the  law  requires  an  index  to  be  kept  or  not, 
a  grantee  who  has  deposited  his  deed  for  record  should 
not  suffer  for  a  mistake  of  the  officer.  As  we  have  already 
said,  we  consider  the  true  principle  to  be,  unless  the  lan- 
guage of  the  statute  necessarily  leads  to  a  different  conclu- 
sion, that  the  obligation  of  the  grantee  as  to  giving  notice 
ceases  when  he  has  filed  his  deed  for  record.  For  any 
mistake  made  in  the  index  or  record   by  the  officer,  the 

^  Chatham  v.  Bradford,  50  Ga.  327;  15  Am.  Rep.  692. 

*  Gilchrist  v.  Gough,  63  Ind.  576;  30  Am.  Rep.  250;  Musgrovev.  Bon- 
ser,  5  Or.  313;  20  Am.  Rep.  737;  Board  of  Commrs.  v.  Babcock,  5  Or. 
472;  Green  v.  Carrington,  16  Ohio  8t.  548;  91  Am.  Dec.  103;  Lincoln 
Building  &  Sav.  Assn.  v.  Hass,  10  Neb.  581 ;  Curtis  v.  Lyman,  24  Vt.  338; 
58  Am.  Dec.  174;  Chatham  v.  Bradford,  50  Ga.  327;  15  Am.  Rep.  692; 
Mchol  V.  Henry,  89  Ind.  54;  Barrett  v.  Prentiss,  57  Vt.  297;  Bedford  v! 
Tupper,  30  Hun,  174;  Stockwell  «.  McHenry,  107  Pa.  St.  237 ;  52  Am. 
Rep.  475 ;  Swan  v.  Vogel,  31  La.  Ann.  38;  Semon  v.  Terhune,  40  N.  J.  Eq. 
364 ;  Oconto  Co.  v.  Jerrard,  46  Wis.  317 ;  Ely  v.  Wilcox,  20  Wis.  523 ;  91 
Am.  Dec.  436;  Fallas  y.  Pierce,  30  Wis.  443;  Mutual  Life  Ins.  Co.  v.  Dake, 
1  Abb.  N.  O.  381.  In  Mutual  Life  Ins.  Co.  v.  Dake,  1  Abb.  N.C.  881,  Mr. 
Justice  Smith,  after  stating  this  rule,  said :  "  In  reaching  this  conclusion 
I  have  not  overlooked  the  practi<;al  inconveniences  tliat  may  result  from 
it  in  searching  records.  But  the  duty  of  the  court  is  only  to  declare  the 
law  as  the  legislature  has  laid  it  down.  Arguments  ab  in  conveiiienti 
may  sometimes  throw  light  upon  the  construction  of  ambiguous  or 
doubtful  words;  but  where,  as  here,  the  language  of  the  law  makes  it 
plain,  they  are  out  of  place.  Inconveniences  in  practice  willresult,  which- 
ever way  the  question  shall  be  decided.  The  power  to  remedy  tliem  ia 
in  the  legislature,  and  not  in  the  courts.  Even  as  the  law  now  stands, 
the  party  injured  by  the  omission  of  the  clerk  is  not  without  remedy, 
for  he  has  his  action  against  the  clerk."  As  to  wliat  an  index  of  records 
Bhould  contain,  see  Smith  v.  Royalton,  53  Vt.  604.  See,  also,  supj)orting 
text,  Stockwell  v.  Mcilenry,  107  Pa.  St.  237;  52  Am.  Rep.  475;  Barrett 
V.  Prentiss,  57  Vt.  297 ;  Swan  v.  Vogel,  31  La.  Ann.  38. 


§    697  REGISTRATION    OF    DEEDS.  948 

grantee  should  not  be  held  responsible,  but  the  loss  should 
fall  upon  the  subsequent  purchaser,  who  may  have  his 
remedy  against  the  recording  officer  for  the  negligent 
performance  of  an  official  duty/ 

§  697.     Liability    of   recording-  officer  for    error. — As 

it  is  the  duty  of  the  recording  officer  to  duly  index  and 
record  the  deed,  he  is  liable  in  damages  to  the  party  in- 
jured for  a  breach  of  this  duty.  The  only  question  that 
can  arise  is,  who  is  the  party  aggrieved?  It  would  prob- 
ably be  held  in  those  States  where  it  is  considered  that  a 
deed  is  not  duly  recorded  unless  properly  copied  upon 
the  record-book,  that  it  would  be  the  grantee,  who,  by 
this  view,  is  the  one  sustaining  the  injury.^  But  generally 
the  claim  to  damages  would  accrue  to  the  party  who  pur- 
chased upon  the  assurance  that  the  records  were  correct.' 

1  In  Ritchie  v.  GrifBths,  1  Wash.  429,  22  Am.  St.  Rep.  155,  the  court 
holds  that  under  the  statute  of  that  State  the  index  is  an  essential  part 
of  the  record,  and  says:  "While  it  is  true  that  Devlin  in  his  work  on 
Deeds,  section  696,  seems  to  imply  that  an  index  is  not  necessary  to  give 
constructive  notice,  yet  he  evidently  bases  the  idea,  not  so  much  on  the 
theory  that  the  index  is  not  a  part  of  the  record,  as  from  his  general  con- 
clusion that  the  obligation  of  the  grantee  as  to  notice  ceases  when  he 
has  filed  his  deed  for  record.     And  he  qualifies  this  general  statement 
bysiiying:  'Unless  the  language  of  the  statute  necessarily  leads  to  a 
different  conclusion' — a  qualification,  it  seems  to  us  which  renders  mean- 
ingless the  general  statement;  for  as  constructive  notice  is  purely  statu- 
tory, it  must  necessarily  follow  that  it  is  'the  language  of  the  statute'  that 
leads  to  one  or  the  other  of  the  conclusions.     He  cites  Barney  v.  Little, 
15  Iowa,  527,  but  says  that  'the  decision  in  that  case  was  founded  upon 
the  express  language  of  the  statute  of  that  State,'  intimating  that  in  con- 
sideration of  the  statute  the  conclusion  of  the  court  was  correct ;   and  in 
as  much  as  our  statutes  make  the  index  a  more  important  factor  in  the 
system  of  registration  than  does  the  Iowa  statute,  we  may  fairly  conclude 
that  under  a  statute  like  ours  the  learned  author  would  consider  the 
index  an  essential  part  of  the  record."     It  is  impossible  to  lay  down  any 
general  rule,  as  each  State  provides  its  own  methods  for  registering  in- 
struments affecting  title  to  land,  and  the  courts  of  each   State  construe 
their  own  statutes. 

*  See  Terrell  v.  Andrew  County,  44  Mo.  309.  The  clerk's  failure  to 
copy  the  description  correctly  will  not  prejudice  the  grantee,  as  the  deed 
is  constructive  notice  from  the  time  it  is  filed  for  record :  Lewis  v.  Hin- 
man,  56  Conn.  55. 

*  Board  of  Commissioners  v.  Babcock,  5  Or.  472;  Mutual  Life  Ins.  Co. 


949  REGISTRATION    OF    DEEDS.  §   698 

The  statute  of  Missouri  requires  the  recorder  to  keep  an 
index,  and  declares  that  if  he  fails  or  refuses  to  provide 
and  keep  in  his  office  an  index  of  the  character  required, 
he  shall  pay  to  the  aggrieved  party  double  the  damages 
caused  thereby.  But  the  court  intimated  that  if  a  pur- 
chaser takes  his  deed,  without  attempting  to  examine  the 
records,  relying  exclusively  upon  the  representations  or 
covenants  of  his  grantor,  or  should  rely  solely  upon  the 
representations  of  the  officer  that  the  title  was  perfect 
and  free  from  encumbrances,  it  could  not  with  reasonable 
propriety  and  fairness  be  said  that  such  purchaser  was 
injured  by  the  want  of  an  index.'  In  Indiana,  where  the 
view  obtains  that  the  record  of  a  deed  is  notice  of  the  ex- 
istence and  record  of  the  deed,  and  not  of  the  original  in- 
strument, a  deed  containing  an  agreement  on  the  part  of 
the  grantee  to  assume  and  pay  the  sum  of  five  hundred 
dollars  as  a  part  of  the  mortgage  debt  on  the  land  con- 
veyed, was,  by  the  recorder's  mistake,  recorded  in  such  a 
manner  as  to  show  the  assumption  on  the  part  of  the 
grantee  of  only  two  hundred  dollars  of  such  mortgage 
debt.  The  recorder  and  his  sureties  were  held  to  be  liable 
upon  the  officer's  official  bond  for  the  damages  which  tlie 
grantor  sustained  by  such  mistake.^  But  where  the  deed 
is  forged,  unless  the  recording  officer  was  aware  of  the 
forgery  he  is  not  liable  for  recording  it.' 

§  698.  Correction  of  mistake  in  record.  —  The  offi- 
cer who  has  recorded  the  deed  has  the  power  to  correct 
any  mistake  made  in  copying  the   deed   into  the  record- 

V.  Dake,  1  Abb.  N.  C.  381 ;  Bishop  v.  Schneider,  46  Mo.  472;  2  Am.  Rep. 
533. 

*  Bishop  V.  Schneider,  46  Mo.  472,  479;  2  Am.  Rep.  533.  See  further 
as  to  the  liability  of  the  recording  officer  for  damages  for  mistai^es,  Gil- 
christ V.  Gough,  63  Ind.576;  30  Am.  Rep.  250;  Hunter  v.  Windsor,  24 
Vt.  327;  Crews  v.  Taylor,  56  Tex.  461;  Lee  v.  Bermingham,  30  Kan.  312; 
Mangold  v.  Barlow,  61  Miss.  593;  48  Am.  Rep.  84;  State  t;.  Davis,  96  Ind. 
539;  Board  of  Commissioners  v.  Babcock,  5  Or.  472;  Poplin  v.  Mundell, 
27  Kan.  138;  Fox  v.  Tiiibault,  33  La.  Ann.  32;  Walking  v.  Wilhoit,  104 
Cal.  395. 

*  State  V.  Davis,  96  Ind.  539. 

»  Ramsey  v.  Riley,  13  Ohio,  157. 


§  699  REGISTRATION    OF    DEEDS.  950 

book.'  But  where  the  view  prevails  that  subsequent  pur- 
chasers are  charged  with  notice  of  such  facts  only  as  the 
records  disclose,  the  corrections  cannot  affect  the  rights 
of  a  purchaser  without  notice  of  the  mistake,  who  be- 
came such  before  the  correction  was  made.  Tlius,  where 
a  grantee  had  his  deed  recorded,  but  by  mistake  the  num- 
ber and  description  of  the  lots  conveyed  were  omitted  in 
the  record,  and  another  person  afterward  bought  the  same 
lots  of  the  same  grantor,  and  subsequently  the  record  of 
the  first  grantee's  deed  was  amended  by  interlineation  of 
the  description,  it  was  held  that  the  interlineation  could 
impart  notice  only  from  the  time  it  was  made,  and  hence 
that  the  second  grantee  had  no  notice  of  the  previous 
conveyance  of  the  property.^  But  under  the  statute  in 
California,  providing  for  the  filing  in  the  office  of  the  re- 
corder a  duplicate  of  a  sheriff's  certificate  of  sale,  it  was 
held  where  such  duplicate  was  deposited  by  the  sheriff 
with  the  recorder,  and  marked  as  filed  by  the  latter,  but 
was  recorded  in  a  book  of  deeds  as  a  deed,  and  regularly 
indexed  as  such,  and  afterward  placed  in  a  file  of  recorded 
deeds,  where  it  remained  for  a  number  of  years,  that  it 
imparted  notice  to  subsequent  purchasers.' 

§  699.      Reformation  of   deed — Correcting  record.  — 

A  court  has  not  power  to  order  the  erasure  of  words  from 
a  deed,  or  to  order  the  recorder  to  alter  his  record  when 
he  has  correctly  copied  the  deed.  This  is  not  the  proper 
mode  of  reforming  a  deed.  If  words  are  inserted  in  a 
deed  which  the  parties  did  not  intend  to  insert,  or  if 
words  are  omitted  which  the  parties  intended  to  insert, 

'  Chamberlain  v.  Bell,  7  Cal.  292;  68  Am.  Dec.  260;  Baldwin  v.  Mar- 
shall, 2  Humph.  116;  Sellers  v.  Sellers,  98  N.  0. 13;  3  S.  E.  Rep.  917. 

«  Chamberlain  v.  Bell,  7  Cal.  292;  68  Am.  Dec.  260.  See  Barnard  v. 
Campau,  29  Mich.  162;  Harrison  v.  Wade,  3  Cold.  505,  It  has  been 
held,  however,  that  the  recording  officer  cannot  correct  the  record. 
See  Jennings  v.  Dockham,  99  Mich.  253;  58  N.  W.  Rep.  66;  Foster  v. 
Dugan,  8  Ohio,  87;  31  Am.  Dec.  482;  Farmer's  &  Mechanic's  Bank  v. 
Bronson,  14  Mich.  361;  Burton  t;.  Martz,  38  Mich.  761. 

^  Page  V.  Rogers,  31  Cal.  293.  Mr.  Justice  Shafter,  however,  dis- 
sented. 


951  REGISTRATION    OF    DEEDS.  §  700 

the  court  should  find  that  there  was  a  mistake,  and  in 
wliat  it  consisted/  The  usual  and  most  appropriate 
method  of  correcting  a  deed,  is  for  the  court  in  its  decree 
of  reformation  to  require  the  grantor  to  make  a  new  deed 
in  accordance  with  the  decree.  If,  however,  this  course 
is  inconvenient,  a  commissioner  should  be  appointed  to 
carry  out  the  decree.  When  the  new  deed  is  recorded, 
a  note  should  be  made  on  the  margin  of  the  record  of 
the  first  deed,  stating  the  reformation  and  showing  in 
what  place  upon  the  record  the  new  deed  can  be  found.^ 

§  700.  Copy  of  seal. — A  record  is  not  vitiated  by  the 
omission  to  record  the  seal  or  to  indicate  in  some  manner 
that  a  seal  was  attached  to  the  instrument.^  "  The  object 
of  registration  of  a  deed  is  to  give  notice  to  the  public  of 
the  fact  that  the  title  to  the  property  has  passed  from  the 
vendor,  and  thereby  prevent  others  from  dealing  with 
him  as  the  owner.  The  conveyance  itself  is  required  to 
be  copied  into  the  record,  in  order  that  parties  may  de- 
termine its  sufficiency  and  the  character  of  the  estate 
conveyed.  To  accomplish  this  end  it  is  not  necessary 
that  the  seal  should  be  copied  upon  the  book;  it  is  enough 
if  it  appear  from  the  record  that  the  instrument  copied 
is  under  seal."^  A  certified  copy  of  a  deed  from  the  re- 
corder's office  contained  in  the  margin  of  the  certificate 

^  Toops  V.  Snyder,  47  Ind.  91. 

*  King  V.  Bales,  44  Ind.  219. 

*  Geary  v.  City  of  Kansas,  (Jl  Mo.  378;  Hadden  v.  Larned,  87  Ga.  634; 
Thorn  v.  Mayer,  33  N.  Y.  Sup.  064.  Tliis  section  is  cited  as  authority  in 
Summer  v.  Mitchell,  29  Fla.  179;  30  Am.  St.  Rep.  106.  See,  also. 
Griffin  v.  Sheffield,  :i8  Miss.  359;  77  Am.  Dec.  646;  Gale  v.  Shillock,  4 
Dak.  182;  29  N.  W.  Rep.  666;  Hammond  v.  Gordon,  93  Mo.  223;  Ballard 
V.  Terry,  28  Tex.  347;  Witt  v.  Harlan,  66  Tex.  660;  Coffee  v.  Hendricks, 
66  Tex.  676.  A  seal  may  be  presumed  from  the  attestation  clause: 
Macey  v.  Stark,  116  Mo.  481 ;  21  S.  W.  Rep.  1088;  Reussens  v.  Staples,  52 
Fed.  Rep.  91 ;  McCoy  v.  Cassidy,  96  Mo.  429 ;  Carrington  v.  Potter,  37 
Fed.  Rep.  767;  Todd  v.  Union  Dime  Sav.  Inst.  118  N.  Y.  337.  See  §  247, 
ante. 

*  Smith  V.  Dall,  13  Cal.  510,  per  Terry,  0.  J.  See,  also.  Crowning  v. 
Behn,  10  B.  Mon.  383;  Beardsley  v.  Day,  52  Minn.  451;  55  N.  W.  Kep. 
46;  Heath  v.  Big  Falls  Cotton  Mills,  115  N.  C.  202;  20  S.  E.  Rep.  369; 
Aycock  V.  Raleigh  etc.  R.  R.  Co.,  89  iS'.  C.  321. 


§  701  REGISTRATION    OF    DEEDS.  952 

of  acknowledgment  taken  before  a  notary,  and  in  the 
place  where  a  seal  is  usually  affixed,  the  words  "no  seal," 
written  in  brackets  in  this  manner:  [No  seal.]  The  con- 
cluding clause  of  the  certificate  was  in  the  usual  form: 
*'  In  witness  whereof  I  have  hereunto  set  my  hand  and 
affixed  my  official  seal,  the  day  and  year  first  above  writ- 
ten." The  lower  court  refused  to  receive  the  copy  of  the 
deed  in  evidence,  on  the  ground  that  the  certificate  did 
not  contain  the  seal  of  the  notary.  But  on  appeal  the 
supreme  court  held  that  this  ruling  w^as  error,  and  that 
the  words  "no  seal"  did  not  imply  that  no  seal  was 
affixed,  but  were  a  mere  note  by  the  recorder  of  the  place 
of  the  notary's  seal,  which  he  was  unable  to  copy.^ 
Under  the  statute  in  Missouri,  the  registration  of  a  mort- 
gage, although  no  seal  or  scrawl  is  attached,  nevertheless 
imparts  notice.  The  registration  law  in  that  State  is  con- 
sidered as  intending  to  embrace,  not  only  legal  convey- 
ances, but  also  every  instrument  in  writing  affecting  the 
legal  or  equitable  title  to  land.^ 

§  701.      Filmg  deed  with  person  in  charg^e  of  office. — 

A  person  who  causes  his  deed  to  be  placed  on  file  for  rec- 
ord in  the  office  provided  for  the  registration  of  deeds,  by 
depositing  it  with  the  person  in  charge  of  the  office,  and 
paying  the  legal  fee,  does  all  that  the  law  requires.  It  is 
not  necessary  that  the  deed  should  be  delivered  to  the 
recorder  or  a  regular  deputy.  It  is  sufficient  that  the  deed 
was  deposited  with  the  person  who  has  the  actual  control 
of  the  office,  as  the  recording  officer  is  responsible  for  the 

^  Jones  V.  Martin,  16  Oal.  166.  This  case  is  'cited  in  Geary  v.  City  of 
Kansas,  61  Mo.  378,  and  the  court  say  of  it:  "We  think  there  was  no 
error  in  this  ruling."  See,  also,  Hedden  v.  Overton,  4  Bibb.  406;  Griffin 
V.  Sheffield,  38  Miss.  359 ;  77  Am.  Dec.  646 ;  Sneed  v.  Ward,  5  Dana,  187 ; 
Ingoldsby  v.  Juan,  12  Cal.  564.  But  see  Switzer  v.  Knapps,  10  Iowa,  72; 
74  Am.  Dec.  375,  where  it  is  held  that  "  where  the  record  of  a  deed  does 
not  show  a  copy  of  the  seal,  as  such  copies  are  usually  made  in  records, 
the  presumption  is  that  there  was  no  seal  in  the  original."  And  see, 
also,  holding  substantially  the  same,  Todd  v.  Union  Dime  Savings  Insti- 
tution, 118  N.  Y.  337;  Floyd  v.  Ricks,  14  Ark.  286;  58  Am.  Dec.  374. 

»  McClurg  V.  Phillips,  57  Mo.  214. 


953  REGISTRATION    OF    DEEDS.  §  702 

acts  of  one  thus  permitted  to  assume  possession  of  tlie 
kevs  and  papers  of  his  office/  The  agent  of  a  grantee 
was  directed  to  take  the  deed  to  the  recorder's  office  for 
record.  This  was  done,  and  the  deed  was  delivered  to  a 
person  who  was  acting  as  recorder.  The  latter  made  the 
proper  indorsements  upon  the  deed,  three  days  before  the 
entry  of  judgment  against  the  grantor  in  the  deed.  It 
was  held  that  the  delivery  to  the  person  in  charge  of  the 
office  was  sufficient,  and  the  deed  was  entitled  to  prece- 
dence over  the  judgment."  Mr.  Justice  Treat  said  of  this 
delivery  that  "  this  was  all  a  prudent  man  would  deem 
necessary  or  advisable.  No  laches  can  be  imputed  to  the 
grantees.  They  were  not  required  to  ascertain  who  was 
the  recorder  de  jure.  It  was  sufficient  to  ascertain  who 
was  in  possession  of  the  records  and  discharging  the  du- 
ties of  the  office."  ^ 

§  702.  Comments. — The  reason  for  this  rule  is  mani- 
fest. A  person  is  not  compelled  to  enter  into  an  exam- 
ination of  the  appointment  of  one  acting  as  a  deputy. 
He  is  not  required  to  ascertain  whether  such  person  has 
taken  the  oath  of  office,  filed  a  bond,  if  necessary,  or  com- 
plied with  other  provisions  of  the  statute.  The  officer  by 
placing  him  in  charge  becomes  accountable  for  his  acts. 
Even  if  the  officer  is  not  allowed  by  law  to  appoint  a  dep- 
uty, the  punishment  for  a  neglect  to  attend  personally  to 
the  duties  of  his  position  should  be    against   him,   and 

1  Dodge  V.  Protter,  18  Barb.  193,  202;  Cook  v.  Hall,  1  Gilm.  (6  111. 
575 ;  Oats  v.  Walls,  28  Ark.  244:  Bishop  v.  Cook,  13  Barb.  326.  See  Bos- 
ley  V.  Forquar,  2  Blackf.  61,  G3;  Deming  v.  Miles,  35  Neb.  739;  37  Am. 
St.  Rep.  464. 

»  Cook  V.  Hall,  1  Gilm.  (6  111.)  575. 

»  Cook  V.  Hall,  supra.  In  Bishop  v.  Cook,  13  Barb.  328,  Welles,  J., 
with  reference  to  a  chattel  mortgage  which  the  statute  declared  should 
be  void  as  against  creditors,  unless  it  or  a  true  copy  of  it  should  be  filed 
in  the  olFice  of  the  town  clerk,  said :  "The  filing  consisted  in  presenting 
the  mortgage  at  the  office  and  leaving  it  there,  and  depositing  it  in  the 
proper  place  with  the  papers  in  the  office.  This  was  done  in  the  proper 
case,  and  was  all  the  appellant  under  the  circumstances  could  do,  and 
all  the  law  required  of  him.  Although  there  was  no  town  clerk  de  jure, 
there  was  a  town  clerk's  office  and  a  tuwu  clerk  de  facto." 


§  703  REGISTRATION    OF    DEEDS.  954 

should  not  be  placed  upon  a  person  doing  business  with 
the  office.  Practically,  if  the  person  in  charge  actually 
files  the  instrument,  and  it  is  subsequently  correctly  cop- 
ied into  the  record,  no  inconvenience  can  arise,  or  dam- 
age be  done.  But  a  case  may  be  imagined,  though  it  does 
not  seem  to  have  arisen,  or  at  least  has  not  come  within 
our  observation,  where  the  person  in  charge  failed  to  re- 
cord the  instrument  at  all,  and  subsequent  purchasers  are 
thus  misled.  It  would  probably  be  held  that  in  such  an 
event  the  same  rule  should  apply  as  would  were  such  per- 
son the  officer  himself. 

§  703.  Regristration  of  deeds  when  State  is  in  re- 
bellion.— Where  a  person  is  acting  under  a  de  facto  gov- 
ernment, if  it  is  of  paramount  force  in  the  county  within 
which  he  performs  the  duties  of  his  office,  his  official  acts, 
notwithstanding  that  such  government  is  unlawful  and 
revolutionary,  are  valid  and  binding,  if  not  done  for  the 
purpose  of  assisting  the  w^ar  power  of  the  unlawful  gov- 
ernment. Hence,  the  registration  of  a  deed  by  an  officer 
who  continued  to  act  as  such  after  the  State  had  passed 
an  ordinance  of  secession,  and  while  the  county  in  which 
he  exercised  his  functions  was  under  the  military  power 
of  the  confederate  government,  is  a  valid  recordation.^ 
Chief  Justice  Waite,  without  attempting  to  give  any  exact 
definitions  within  which  the  acts  of  the  government  of  a 
State  in  rebellion  should  be  treated  as  valid  or  invalid, 
observed,  upon  the  general  subject:  "It  may  be  said,  per- 
haps, with  sufficient  accuracy,  that  acts  necessary  to  peace 
and  good  order  among  citizens,  such,  for  example,  as  acts 
sanctioning  and  protecting  marriage  and  the  domestic 
relations,  governing  the  course  of  descents,  regulating  the 
conveyance  and  transfer  of  property,  real  and  personal, 
and  providing  remedies  for  injuries  to  person  and  estate, 
and  other  similar  acts,  which  would  be  valid,  if  emanat- 

^  Henning  v.  Fisher,  6  W.  Va.  238.  But  see  the  earlier  cases  in  that 
State  of  Brown  v.  Wylie,  2  W.  Va.  502;  98  Am.  Dec.  781 ;  Calfee  v.  Bur- 
gess, 3  W.  Va.  274. 


955  REGISTRATION    OF    DEEDS.  §§  704,705 

ing  from  a  lawful  government,  must  be  regarded  in  gen- 
eral as  valid  when  proceeding  from  an  actual,  though 
unlawful  government;  and  that  acts  in  furtherance  or 
support  of  rebellion  against  the  United  States,  or  intended 
to  defeat  the  just  rights  of  citizens,  and  other  acts  of  like 
nature,  must,  in  general,  be  regarded  as  invalid  and  void."^ 

§  704.  Payment  of  fees. — An  officer  is  not  required 
to  receive  a  deed,  or  to  permit  it  to  be  filed  in  his  office 
for  registration,  until  all  fees  he  is  authorized  to  collect 
have  been  paid.  But  if  he  sees  proper  to  permit  a  deed 
to  be  deposited  with  him  without  the  payment  of  the  tax 
upon  it,  he  must  record  it,  and  must  look  for  the  payment 
of  the  tax  to  the  person  for  whom  he  records  the  deed. 
By  receiving  the  deed  for  record  without  objection,  it  is 
presumed  that  he  dispenses  with  the  previous  payment  of 
■■he  tax,  and  the  person  depositing  the  instrument  has  a 
fight  to  assume  that  it  will  be  duly  recorded.^  A  pro- 
vision in  a  statute  that  "no  deed  shall  be  admitted  to 
record  until  the  tax  is  paid  thereon,"  is  merely  directory. 
If  the  officer  records  the  deed  without  the  payment  of  the 
tax,  the  record  is  not  invalidated,  but  he  assumes  the  tax.' 

§   705.     Proof  of  time  at  which  deed  is  recorded. — The 

certificate  of  the  recorder  is  generally  regarded  as  con- 
clusive proof  of  the  time  at  whicli  a  deed  is  deposited  for 
record.  "It  is  the  date  of  the  reception  and  record,  and 
not  the  order  in  which  the  entry  is  made,  that  is  to  be  re- 
lied upon  as  giving  notice  of  priority.  The  record  is  the 
instrument  of  notice  to  subsequent  purchasers  of  the  state 

'  In  Texas  v.  White,  7  Wall.  700,  733.  See,  also,  Harrisons  i;.  Farmers' 
Bank  of  Virginia,  6  VV.  Va.  1 ;  Griffin  v.  Cunningham,  20  Gratt.  31  ;  Sherfy 
V.  Argen bright,  1  Heisk.  128;  2  Am.  Rep.  690;  Thorington  v.  Smith,  8 
Wall.  1. 

"  Bussing  V.  Grain,  8  Mon.  B.  593 ;  Ridley  v.  McGehoe,  2  Dev.  40 ;  Peo- 
ple V,  Bristol,  35  Mich.  28. 

*  Lucas  V.  Clafflin,  76  Va.  269.  See,  also,  Hoffman  v.  Mackall,  5  Ohio 
St.  124;  64  Am.  Dec.  637.  Where  the  register  refuses  to  record  the  deed 
until  his  fees  are  paid,  the  leaving  of  the  deed  with  him  is  held  not  to 
be  constructive  notice :  Cunningham  v.  Peterson,  109  N.  0.  33. 


§  700  REGISTRATION    OF    DEEDS.  956 

of  the  title;  and  to  permit  it  in  any  manner  to  be  affected 
by  parol  or  extraneous  evidence  would  not  only  destroy 
its  value  for  that  purpose,  but  would  convert  it  into  an 
instrument  for  deception.  It  would  be  dangerous  to  the 
rights  of  all  subsequent  purchasers,  and  contrary  to  the 
established  rules  of  evidence,  to  admit  any  of  the  testi- 
mony offered  to  explain  or  vary  the  record."^  But  the 
certificate  is  not  conclusive  of  the  fact  that  the  instru- 
ment has  been  properly  recorded,  but  only  of  the  time  of 
its  receipt  by  the  recording  officer.^  But  when  the  register 
has  failed  to  note  the  time  at  which  it  was  received  for 
record,  such  time  may  be  proved  by  parol  evidence.^ 

§  706.  Witbclrawing  deed  filed  for  record. — If  a  deed 
is  witlidrawn  from  the  office  of  the  recorder  before  it  is 
actually  recorded,  its  priority  is  lost.*  A  person  executed 
a  mortgage  and  filed  it  for  record  the  same  day.  He  after- 
ward obtained  possession  of  it  before  it  was  actually 
spread  upon  the  records,  and,  while  it  was  out  of  the  re- 
corder's possession,  he  sold  the  premises  described  in  the 
mortgage.     The  purchaser  had  his  deed  recorded,  and, 

1  Hatch  V.  Haskins,  17  Me.  391,  395,  per  Shepley,  J.  See,  also,  Fuller 
V.  Cunningham,  105  Mass.  442;  Bubose  v.  Young,  10  Ala.  365;  Tracy  v. 
Jenks,  15  Pick.  465;  Ames  v.  Phelps,  18  Pick.  314;  Wing  v.  Hall,  47  Vt. 
182;  Bullock  v.  Wallingford,  55  N.  H.  619;  Edwards  v.  Barwise,  69  Tex. 
84;  6  S.  W.  Rep.  677.  But  see  Horsely  v.  Garth,  2  Gratt.  471,  44  Am. 
Dec.  393,  where  it  was  held  that  parol  evidence  is  admissible  to  show 
when  a  deed  was  recorded. 

^  Thorp  V.  Merrill,  21  Minn.  336;  New  York  Life  Ins.  Co.  v.  White,  17 
N.  Y.  469;  Dubosev.  Young,  10  Ala.  365;  Worcester  Nat.  Bank  v.  Cheeney, 
87  111.  602.  And  see  Jackon  v.  Phillips,  9  Cow.  94.  Where  the  entry  in 
the  index-book  in  the  recorder's  office  sliows  upon  its  face  that  it  was 
not  made  at  the  time  at  wliich  it  was  received,  the  presumption  as  to 
the  correctness  of  the  certificate  is  destroyed :  Hay  v.  Hill,  24  Wis.  235. 

*  Metts  V.  Bright,  4  Dev.  &  B.  173;  32  Am.  Dec.  683;  Cunningham  v. 
Peterson,  109  N.  C.  33;  13  S.  E.  Rep.  714;  Boyce  u.  Stanton,  15  Lea, 
346. 

*  Hickman  r;.  Perrin,  6  Cold.  135;  Turman  t;.  Bell,  54  Ark.  273;  26 
Am.  St.  Rep.  35;  Johnson  v.  Borden,  40  Vt.  567;  94  Am.  Dec.  436;  Wor- 
cester Nat.  Bank  v.  Cheeney,  87  111.  602;  Glamorgan  v.  Lane,  9  Mo.  446. 
See,  where  liens  of  mortgage  have  not  been  lost,  though  instruments 
withdrawn,  Swift  «.  Hall,  23  Wis.  532;  Wilson  t;.  Leslie,  20  Ohio,  161; 
Woodruff  V.  Phillips,  10  Mich,  500. 


957  REGISTRATION    OF    DEEDS.  §   707 

subsequently,  the  mortgage  was  returned  to  the  recorder's 
office.  The  court  held  that  the  deed  was  entitled  to  pri- 
ority if  the  purchaser  had  paid  a  valuable  consideration.' 

§  707.  Constructive  notice. — But  the  purchaser  may 
have  sufficient  information  to  put  him  upon  inquiry,  and 
charge  him  with  construetive  notice.  Thus,  if  a  per- 
son, when  about  to  purchase  a  piece  of  property,  is 
informed  by  the  recorder  that  the  vendor  has  already  ex- 
cuted  a  deed  of  the  same  property  to  another  person, 
which  was  filed  for  record,  but  was  withdrawn  before  be- 
ing recorded,  this  information  is  sufficient  to  put  such 
intending  purchaser  upon  inquiry."^  To  constitute  notice 
of  an  adverse  title  to  the  property,  it  is  not  essential  that 
such  information  should  be  given  by  a  person  interested 
in  the  property.' 

'  Kiser  v.  Heuston,  38  111.  252.  Where  a  deed  of  trust  is  presented 
to  the  recorder,  and  is  indorsed,  "filed  for  record,"  and  immediately 
afterward,  and  before  any  entry  concerning  it  is  made,  is  withdrawn  for 
the  purpose  of  having  a  government  stamp  placed  upon  it,  and  is  not 
returned  for  a  month  or  more  afterward,  tiie  first  filing  is  not  sufficient 
to  give  constructive  notice  of  the  existence  of  the  deed :  Worcester  Nat. 
Bank  v.  Cheeney,  87  111.  602.     See,  also,  Glamorgan  v.  Lane,  9  Mo,  446. 

=>  Lawton  v.  Gordon,  37  Oal.  202. 

'  Lawton  v.  Gordon,  supra.  In  that  case  Mr.  Justice  Rhodes,  de- 
livering the  opinion  of  the  court,  said :  '"  Tlie  purcliaser  received  definite 
and  certain  information  of  the  existence  of  Reed's  deed,  and  this  in- 
formation was  wortliy  of  credit,  for  it  came  from  one  who  had  seen  the 
deed  and  filed  it  for  record.  Would  any  reasonable  man,  who  was  con- 
templating the  purchase  of  property,  after  having  received  that  informa- 
tion, doubt  as  to  his  duty  to  pursue  the  inquiry,  in  order  to  ascertain  the 
true  condition  of  the  title?  He  certainly  would  not  hesitate,  unless  he 
was  laboring  under  the  mistake  of  law,  that  a  recorded  deed  always 
took  precedence  of  an  unrecorded  deed.  The  information  itself  being 
sufficient  in  all  respects  to  put  the  purchaser  upon  his  inquiry,  the  only 
remaining  question  is,  whether  the  information  must  come  from  a  per- 
son interested  in  the  property?  Upon  this  question  the  plaintiff  cites 
Leading  Cases  in  Equity,  notes  to  Le  Neve  v.  Le  Nev^,  in  which  the 
writer  says :  'And  this  rule  has  been  stated  so  positively,  and  in  such  un- 
qualifie<l  terms,  under  the  sanction  of  names  of  great  authority,  as  to 
lea<l  to  the  inference  that  notice  cannot  be  binding  unless  it  proceed 
from  a  person  interested  in  the  property  and  in  the  course  of  the  tVeaty  for 
its  purchase.'  The  rule  alluded  to  was,  that  the  notice  must  be  certain; 
and  the  rule,  it  wag  said,  applied  emphatically  to  all  statements  which 
do  not  proceed  directly  from  parties  in  interest  or  their  agents.     '  But 


§  708  REGISTRATION    OP    DEEDS.  958 

§  708.  Deposit  subject  to  furtlier  order. — If  a  cou- 
veyauce  is  left  with  the  recording  officer  with  instructions 
not  to  record  it  until  he  is  so  directed,  it  should  not  be 
recorded  until  such  directions  are  given.  This  may  be 
illustrated  by  a  case  where  a  mortgage  was  given  to  the 
recorder  with  directions  not  to  place  it  on  record  until  he 
received  further  directions,  and  the  recorder's  clerk  re-  ' 
corded  it  without  such  directions  having  been  received.  1 
It  was  held  that  under  these  circumstances  the  placing  of 
the  mortgage  upon  the  record-book  was  not  a  registration 
which  entitled  it  to  priority  over  conveyances  and  encum- 
brances subsequently  filed  for  record.  If  such  directions 
were  received,  the  instrument  should  be  recorded  as  of 
that  time,  and  not  as  of  the  time  when  it  was  left  with 
the  recorder.^  And  still  more  clear  is  the  proposition 
that  a  deed  left  with  the  recorder  with  such  instructions 
does  not,  before  registration,  afford  constructive  notice  of 
its  contents  as  though  recorded.^ 

this  doctrine,'  he  continues,  'must  be  understood  as  applying  to  notice 
in  its  limited  sense,  as  distinguished  from  knowledge  or  such  informa- 
tion as  is  substantially  equivalent  to  knowledge.  It  is  evident  that,  if 
it  be  shown  that  the  purchaser  knew  ot  the  existence  of  an  adverse 
claim  or  title,  it  cannot  be  necessary  to  prove  notice,  and  that  it  must  be 
immaterial  whether  his  knowledge  was  obtained  from  the  parties  inter- 
ested or  from  third  persons.  The  true  rule,  therefore,  with  regard  to 
the  statements  of  strangers  and  of  parties  in  interest,  would  seem  to  be 
that  the  general  statement  of  the  existence  of  an  adverse  title,  to  which 
no  weight  would  be  due  when  proceeding  from  a  stranger,  will  be  notice 
when  coming  from  the  party  interested;  and  not  that  distinct  and  posi- 
tive information  can  be  disregarded  because  the  person  who  gives  it  has 
no  interest  in  the  property  to  which  it  relates.  A  purchaser  cannot  go 
on  with  safety  to  complete  a  purchase  after  learning  the  existence  of  a 
prior  conveyance  of  the  property  by  the  vendor,  from  a  person  present 
as  a  witness,  or  even  as  a  bystander,  at  the  execution  of  the  deed  by 
which  it  was  conveyed.  And  it  can  hardly  be  doubted  that  the  same 
result  will  follow  from  the  statement  of  any  fact  within  the  knowledge 
of  the  party  who  stated  it,  wdiich  shows  that  the  title  purchased  is  sub- 
ject to  the  legal  or  equitable  claims  of  other  persons.'  " 

^  Brigham  v.  Brown,  44  Mich.  59.    See,  also,  Horsley  v.  Garth,  2  Gratt. 
471 ;  44  Am.  Dec.  393. 

2  Haworth  v.  Taylor,  108  111.  275;  Davis  v.  Whitaker,  114  N.  C.  279; 
41  Am.  St.  Eep,  793;  19  S.  E.  Rep.  699;  Moore  v.  Ragland,  74  N.  O.  343. 


959  REGISTRATION    OF    DEEDS.  §  709 

§  709.  Priority  between  deeds  recorded  on  the  same 
day. — Generally,  of  two  deeds,  the  one  first  filed  for  rec- 
ord is  given  the  preference.  Two  deeds  of  trust  embrac- 
ing the  same  property  were  delivered  to  the  recorder  on 
the  same  day  by  the  same  person,  one  after  the  other,  and 
they  were  recorded  in  the  order  in  which  they  were  de- 
livered. It  was  held  that  where  nothing  appeared  that 
one  of  the  trust  deeds  was  entitled  to  priority  over  the 
other  as  to  the  time  for  filing,  the  deed  first  recorded  took 
precedence.^  But  where  two  deeds  were  so  defectively 
acknowledged  that  neither  was  entitled  to  registration,  it 
was  held  that  the  eff'ect  of  a  curative  act  passed  subse- 
quently was  to  record  both  deeds  at  the  same  instant  of 
time,  and  hence  left  them  to  operate  as  at  common  law, 
by  which  the  deed  first  executed  would  pass  the  title  to  the 
land  described  in  it.^  It  maybe  shown  by  parol  evidence 
which  of  two  mortgages,  signed,  acknowledged,  and  depos- 
ited for  record  on  the  same  day,  was  first  filed  for  record.^ 

1  Brookfield  v.  Goodrich,  32  111.  363.  Said  Mr.  Chief  Justice  Oaton: 
"In  the  absence  of  proof  to  the  contrary,  the  presumption  is  that  the 
deeds  were  tiled  for  record  in  the  order  in  which  they  were  handed  to  the 
recorder  as  the  law  made  it  his  duty  to  do,  and  upon  this  presumption 
the  purchasers  of  the  several  classes  of  bonds  secured  by  these  deeds  had 
a  right  to  act.  The  trustee  in  these  cases  is  not  the  true  purchaser,  and 
to  be  protected  by  the  recording  laws,  but  the  purchasers  of  the  bonds 
are  the  true  purchasers.  It  was  their  right  and  their  duty  to  examine 
the  recoid  of  these  deeds,  and  there  they  found  that  the  deed  securing 
the  one  thousand  dollar  bonds  was  first  reconled,  and  by  our  recording 
laws  was  entitled  to  a  preference,  and  upon  this  law  they  could  securely 
repose  in  purchasing  this  class  of  bonds,  knowing  that  the  law  gave  them 
a  preference ;  and  so,  loo,  the  [lurchasers  of  the  other  bonds  were  in  duty 
bound  to  examine  the  same  record  by  which  they  were  toM  tliat  these 
bonds  were  secured  l)y  a  second  lien  upon  the  premises,  and  that  they 
must  be  postponed  until  all  the  bonds  secured  by  the  deed  first  recorded 
were  all  paid.  If  they  took  the  assurance  of  the  s-iller  that  these  bonds 
were  secured  by  a  first  lien,  that  was  their  own  folly.  To  make  good 
that  assurance  would  be  a  fraud  upon  the  purchasers  of  the  first  bonds, 
who  had  a  rij^ht  to  rely  upon  the  law  and  the  record,  which  declare  that 
they  are  entitled  to  a  first  lien." 

'  Dein  nger  v.  McConnel,  41  111.  228. 

•  Spaulding  v.  Scanland,  6  Mon.  B.  353.  The  court  will  take  notice 
of  the  fractional  (-arts  of  a  day:  Lemon  v.  Staats,  1  Cowen,  51*2;  Boone 
V.  Tolles,  2  liradw.  Clli.)  539. 


§  710  REGISTRATION    OP    DEEDS.  960 

§  710.  Facts  of  whicli  the  record  gives  notice. — When 
a  coiiveyiuice  has  been  properly  recorded,  the  record  is 
constructive  notice  of  its  contents,  and  of  all  interests, 
legal  and  equitable,  created  by  its  terms.^  A  sold  land  to 
B,  and  executed  a  bond  for  a  conveyance  upon  payment 
of  the  purchase  money;  in  the  same  manner  B  sold  a 
portion  of  the  land  to  C,  and  subsequently  sold  the  resi- 
due at  the  same  time  to  two  persons,  giving  to  each  a 
bond  for  a  title.  Afterward  B  obtained  a  deed  for  the 
whole  tract  from  A,  and  for  the  purpose  of  securing  a 
part  of  the  purchase  money,  executed  at  the  same  time  a 
mortgage  upon  that  portion  of  the  premises  which  had 
been  sold  to  one  of  the  two  persons  purchasing  last,  such 
purchaser  being  then  indebted  on  his  purchase  in  an 
amount  exceeding  the  mortgage  debt.  The  mortgage  was 
duly  recorded,  and  the  purchasers  of  the  unencumbered 
portions  of  the  land  paid  the  several  amounts  due  by 
them,  and  received  deeds  from  B,  and  several  years  after- 
ward  the  purchaser  of  the  mortgaged  premises,  who  had 
no  actual  notice  of  the  mortgage,  paid  the  sum  remain- 
ing due  upon  his  agreement,  and  received  also  a  deed 
from  B.  A  suit  was  brought  to  foreclose  the  mortgage, 
and  the  court  held  that  the  grantee  of  the  mortgaged 
premises  held  the  same  in  subjection  to  the  full  encum- 

1  Grandin  v.  Anderson,  15  Ohio  St.  286;  Humphreys  v.  Newman,  51 
Me.  40;  Bancroft  v.  Consen,  13  Allen,  50;  George  v.  Kent,  7  Allen,  16; 
Orvia  v.  Newell,  17  Conn.  97 ;  BoUes  v.  Ohauncey,  8  Conn.  389 ;  Cla- 
baugh  V.  Byerly,  7  Gill,  354 ;  48  Am.  Dec.  575 ;  Bush  v.  Golden,  17  Conn. 
594;  Thomson  v.  Wilcox,  7  Lans.  376;  Peters  v.  Goodrich,  3  Conn.  146; 
Harrison  v.  Cachelin,  23  Mo.  117;  Kyle  ■;;.  Thompson,  11  Ohio  St.  616; 
Buchanan  v.  International  Bank,  78  111.  500 ;  Souder  v.  Morrow,  33  Pa. 
St.  83 ;  Hetherington  v.  Clark,  30  Pa.  St.  393;  Barbour  v.  Nichols,  3  R.  I. 
187;  Youngs  v.  Wilson,  27  N.  Y.  351;  Dimon  v.  Dunn,  15  N.  Y.  498; 
Ogden  V.  Walters,  12  Kan.  282;  Dennis  v.  Burritt,  6  Cal.  670;  Mesick  v. 
Sunderland,  6  Cal.  297;  McCabe  v.  Grey,  20  Cal.  509;  Montefiore  v. 
Browne,  7  H.  L.  Cas.  341;  Parkest  t;.  Alexander,  1  Johns.  Ch.  394; 
Leach  v.  Beattie,  33  Vt.  195.  And  see  Johnson  v.  Stagg,  2  Johns.  510; 
Doyle  V.  Stevens,  4  Mich.  87;  Tripe i).  Marcy,  39  N.  H.  439;  Leiby  i). 
Wolf,  10  Ohio,  83.  The  record  of  a  deed  showing  on  its  face  that  it  was 
properly  executed  and  acknowledged  is  evidence  that  it  was  in  fact  ex- 
ecuted as  it  purports  to  have  been,  notwithstanding  by  reason  of  extrinsic 
facts  it  may  be  void  or  voidable:  Clague  v.  Washburn,  42  Minn.  371. 


961  REGISTRATION    OF   DEEDS.  §  710 

brance  of  the  mortgage,  and  that  there  was  no  vendor's 
lien  which  would  render  any  other  portion  of  the  land 
liable  to  contribute  to  the  discharge  of  the  debt  secured 
by  the  mortgage/  Where  the  whole  of  a  lot  of  land  is 
subject  to  a  mortgage,  one  who  takes  a  subsequent  mort- 
gage, with  notice  of  a  prior  unrecorded  deed  of  warranty 
of  an  adjoining  portion  of  the  same  lot  from  the  mort- 
gagor to  a  third  person,  cannot  enforce  contribution  from 
the  latter  toward  redeeming  the  mortgage;  and  a  direct 
reference  in  the  mortgage  to  such  third  person  as  owning 
the  adjoining  land  is  equivalent  to  notice.*  A  purchaser 
received  a  deed  for  the  undivided  one-half  of  a  church 
and  lot,  "together  with  all  and  singular  the  rights,  liber- 
ties, privileges,  hereditaments,  and  appurtenances  there- 
unto belonging,  in  as  full  and  ample  a  manner,  and  with 
all  the  same  rights  and  conditions,  authorities  and  agree- 
ments, with  which  Hugh  Bellas,  and  Esther,  his  wife  [the 
vendors],  now  hold  the  said  premises  as  regards  all  or  any 
assemblies  for  divine  worship."  Subsequently  the  vendee 
purchased  the  other  half  of  the  premises  from  the  same 
vendor.  It  was  held  in  an  action  of  covenant  to  recover 
the  purchase  money,  in  which  the  vendee  claimed  there 
was  a  defect  of  title,  that  the  first  deed  gave  legal  notice 
of  a  valid  subsisting  right  in  an  assembly  for  divine  wor- 
ship.* If  the  conveyances  under  which  a  grantee  holds 
refer  to  previous  deeds  containing  restrictions  as  to  the 
use  of  the  property,  and  those  deeds  are  recorded,  he  will, 
although  he  may  not  have  express  notice  of  these  restric- 
tions, be  deemed  in  law  to  have  such  notice,  and  will  be 
bound  in  the  same  manner  as  though  the  restrictions 
were  contained  in  the  deed  made  to  him.^ 

^  Grandin  v.  Anderson,  15  Ohio  St.  286. 

'  Geor(,'e  v.  Kent,  7  Alien,  16. 

»  Bellas  V.  Lloyd,  2  Watts,  401. 

*  Gilbert  v.  Peteler,  38  Barb.  488.  The  facts  of  the  case  cited  pertinent 
to  thia  point  are  thus  stated  by  the  court:  "  The  premises  to  which  this 
controversy  relates  consists  of  two  parcels;  one,  the  westerly  portion, 
designated  in  the  report  of  the  referees  the  hotel  plat;  the  other,  or  east- 
erly part,  designated  the  Bartiett  [(Lit.  There  is  no  question  of  tlie  ability 
hEEua,  Vol.  II.  —  01 


§710a  REGISTRATION    OF    DEEDS.  962 

§  710  a.  Presumption  of  knowledgre  of  rights  of 
others. —It  is  presumed  that  a  purchaser  has  examined 
every  deed   and    instrument   affecting  the    title.     He    is 

of  the  plaintiff  to  convey  a  good  title  to  the  former  of  these.  The  two  par- 
cels were  contracted  to  be  sold  together,  however,  and  as  one  piece  of  land. 
The}^  are  not  distinguished  in  the  contract,  but  Gilbert  agrees  to  sell  and 
convey  to  Peteler  lands  in  New  Brighton  lying  between  certain  streets, 
and  including  all  tliese  premises.  The  plaintiff's  title  to  the  whole  prop- 
erty is  derived  from  one  Fox.  Fox  obtained  his  title  by  two  conveyances. 
One  was  from  a  person  named  Davis,  dated  October  14,  1846,  of  the  hotel 
plat.  This  was  an  absolute  deed,  and  conveyed  a  perfect  and  unqualified 
title.  Tills  Davis  was  originally  the  owner  of  the  whole,  and  his  title 
was  absolute  in  fee.  But  on  the  14th  of  September,  1846,  before  his  deed 
to  Fox,  Davis  had  conveyed  what  was  afterward  known  as  the  Bartlett 
plat  to  Edwin  Bartlett.  The  deed  from  Davis  to  Bartlett  was  absolute, 
like  the  other,  and  contained  no  restriction.  But  it  appears  that  Bartlett 
took  this  title  at  the  request  of  one  John  C.  Green,  who  was  the  owner  of 
certain  adjoining  premises  which  he  desired  to  protect.  Green  advanced 
the  purchase  money,  and  Bartlett  held  the  title  for  him,  and  subject  to  his 
direction,  although  there  was  no  written  evidence  of  the  arrangement. 
On  the  30th  of  October,  1846,  Bartlett,  at  Green's  request,  and  by  his  direc- 
tion, conveyed  the  strip  of  which  he  thus  held  the  title  to  Fox,  who  was 
already,  by  Davis'  deed,  the  owner  of  the  residue.  This  deed  of  Bartlett 
contained  a  provision  in  the  form  of  a  covenant  by  the  party  of  the  second 
part  (Fox)  his  heirs,  executors,  administrators,  and  assigns,  to  and  with 
Bartlett,  his  heirs  and  assigns,  not  to  erect  or  permit  to  be  erected  at 
any  time  thereafter,  on  any  part  of  the  premises,  any  building  whereby 
the  view  or  prospect  of  the  bay  from  the  dwelling-house  of  John  C.  Green 
could  be  obstructed  or  impaired,  unless  Green  should  first  destroy  his  own 
prospect  by  building  on  his  own  lot.  The  deed  added  a  clause  of  forfeit- 
ure in  favor  of  Green  in  the  event  of  a  breach  of  this  covenant.  It  was 
not  signed  or  executed  by  Fox.  Fox  afterward  conveyed  to  Theodosius 
O.  Fowler,  subject  to  this  covenant,  and  to  an  express  stipulation  by 
Fowler  to  observe  it.  Fowler  conveyed  to  Victor  Forgeaud,  subject  to 
the  same  covenant  and  stipulation.  Forgeaud  obtained  also  a  release 
and  quitclaim  of  title  from  Green,  but  with  a  clause  preserving  the  re- 
striction as  to  building,  etc.  At  or  about  this  time  there  was  erected  a 
stone  cottage  upon  the  Bartlett  lot,  and  Green  afterward,  by  a  deed  re- 
citing that  he  was  tiie  person  for  whose  benefit  the  restriction  was  im- 
posed, released  Forgeaud  from  the  restriction  as  to  the  land  occupied  by 
this  cottage,  but  with  a  proviso  that  this  should  not  remove  the  restric- 
tion or  impair  his  rights  as  to  the  residue  of  the  premises.  After  this 
Forgeaud  conveyed  to  August  Belmont,  by  a  deed  containing  an  express 
covenant  on  the  part  of  Belmont  to  abide  by  the  restrictions  in  the  deed 
to  Forgeaud ;  this  latter  deed,  however,  like  the  others,  not  being  signed 
by  the  grantee.  Belmont  conveyed  to  Vanderbilt  by  a  deed  in  similar 
terms.  From  Vanderbilt  the  title  passed  to  the  plaintiff  by  various 
mesne  conveyances,  none  of  which  contained  any  express  covenant  or 


963  REGISTRATION    OF    DEEDS.  §  711 

charged  with  notice  of  every  fact  shown  by  the  records, 
and  is  presumed  to  know  every  other  fact  which  an  ex- 
amination suggested  by  the  records  would  have  disclosed. 
If  a  mortgagee  holding  the  mortgage  in  trust  for  another* 
releases  it  before  it  becomes  due,  in  violation  of  the  terms 
of  the  trust,  subsequent  purchasers  are  still  bound  by  the 
mortgage,  because  they  are  deemed  to  know  that  the 
trustee  had  no  such  authority.'  Where  a  deed  from  a 
corporation,  under  which  a  purchaser  claims  title,  shows 
on  its  face  that  it  was  made  in  consideration  of  real 
for  personal  property,  and  the  corporation  was  not  au- 
thorized by  its  charter  to  convey  lands  for  a  consideration 
of  this  kind,  such  purchaser  is  not  considered  an  innocent 
one,  the  recitals  in  the  deed  affecting  all  persons  claiming 
under  it  with  notice  that  the  act  was  in  excess  of  the 
power  of  the  corporation.^ 

§  711.  Notice  of  unrecorded  deed  from  notice  of  pow^er 
of  sale. — Where  a  trust  deed  or  a  mortgage  with  a  power 
of  sale  is  recorded,  subsequent  purchasers  are  compelled 
to  inquire  if  any  sale  has  been  made  under  the  power. 
If  a  sale  has  been  made  by  virtue  of  the  power,  although 
the  deed  has  not  been  recorded,  a  subsequent  purchaser 
from  the  mortgagor  does  not  acquire  the  estate.  The 
equity  of  redemption  is  cut  off  by  the  sale,  notwithstand- 
ing the  deed  may  not  be  recorded.^     "The  recording  of  the 

restriction,  but  all  of  which  referred  to  the  deed  from  Vanderbilt  to  his 
next  grantee,  which  latter  deed  referred  to  the  deed  from  Belmont  to 
Vanderbilt,  which  contained  the  restriction."  The  court,  accordin^rly, 
held  that  plaintiff  must  be  charged  with  notice  of  such  restriction  and 
its  consequences.  See,  also.  White  v.  Foster,  102  Mass.  375 ;  Jacques  v. 
Short,  20  Barb.  269;  Acer  v.  Westcott,  46  N.  Y.  384;  7  Am.  Rep.  355; 
Hamilton  v.  Nutt,  34  Conn.  501 ;  Sigourney  v-  Munn,  7  Conn.  324;  Baker 
V.  Mather,  25  Mich.  51;  Caml^ridge  Valley  Bank  v.  Delano,  48  N.  Y.  326; 
Anderson  v.  Lay  ton,  3  Busli,  87.  And  see  Bazemore  v.  Davis, 55  Ga.  504; 
Bell  V.  Twilight,  18  N.  H.  159 ;  45  Am.  Dec.  367 ;  Sioux  City  etc.  K.  R.  Co. 
V.  Singer,  49  Minn.  301;  32  Am.  St.  Rep.  554. 

1  McPiierson  v.  Rollins,  107  N.  Y.  316;  1  Am.  St.  Rep.  826. 

'  Franco-Texan  Land  Co.  v.  jNIcCorniick,  85  Tex.  416;  34  Am.  St.  Rep. 
815. 

»  Heatou  v.  i'rather,  84  111.  ooO. 


§  712  REGISTRATION    OF    DEEDS.  964 

trust  deed  gave  notice  of  its  existence  to  subsequent  claim- 
ants of  the  equity  of  redemption,  and  pointed  out  the 
source  of  information  of  what  might  be  done  in  pursu- 
ance of  the  deed,  and  they  were  bound  to  take  notice  of 
th  ^  proceedings  thereunder."^  Where  the  provisions  of 
a  mortgage  or  trust  deed  require  for  their  execution  that 
the  trustees  should  have  an  estate  in  fee  simple,  and  such 
mortgage  or  trust  deed  has  been  recorded  in  full,  the 
record,  though  words  of  inheritance  have  been  inadver- 
tently omitted  from  the  instrument,  is  notice  that  it  was 
intended  to  pass  the  fee.^ 

§   712.      Record  is  not   notice   to   prior   parties. — The 

rule  to  be  deduced  from  the  authorities  is,  that  only  those 
whose  duty  it  is  to  search  for  a  deed  are  charged  with 
notice  by  its  record.  The  expression  is  frequently  used 
that  the  record  of  a  deed  is  a  constructive  notice  "to  all 
the  world."  But  Mr.  Justice  Sharswood  very  justly  says 
that  this  assertion  is  "too  broad  and  unqualified  an  enun- 
ciation of  the  doctrine.  It  is  constructive  notice  only  to 
those  who  are  bound  to  search  for  it;  thus  subsequent 
purchasers  and  mortgagees,  and  perhaps  all  others  who 
deal  with  or  on  the  credit  of  the  title,  in  the  line  of  which 
the  recorded  deed  belongs.  But  strangers  to  the  title  are 
in  no  way  affected  by  it."^  Hence,  a  purchaser  at  a 
sheriff's  sale,  who  does  not  claim  under  a  deed  made  be- 
tween third  persons,  is  not  affected  with  notice  by  the 
registration  of  such  deed.*  "  If  conveyances  from  one 
stranger  to  another  would  be  notice  to  all  the  world,  mis- 
erable would  be  the  situation  of  the  purchaser.  The 
registering  act  would  afford  him  no  protection  because  it 
would  give  him  no    notice."  *     If  a  mortgage  of  land  is 

'  Farrar  v.  Payne,  73  111.  82,  88,  per  Sheldon,  J. 

^  Randolph  v.  N.  J.  West  Line  R.  R.  Co.,  28  N.  J.  Eq.  (1  Stewt.),  49. 
And  see,  also,  Dimon  v.  Dunn,  15  N.  Y.  498;  Youngs  v.  Wilson,  27  N.  Y. 
351 ;  Hickman  v.  Perrin,  6  Coldw.  135  j  Bright  v.  Buckman,  39  Fed.  Kep. 
243. 

»  Maul  V.  Rider,  59  Pa.  St.  167,  171. 

*  Keller  v.  Nutz,  5  Serg.  &  R.  245. 

'  Duncan,  J.,  in  Keller  v.  Kutz,  supra. 


9G5  REGISTRATION    OF    DEEDS.  §  713 

executed,  and  a  right  of  way  is  reserved  in  a  deed  of 
the  same  land  made  subsequently,  the  right  is  held  sub- 
ject to  the  title  of  the  mortgagee.  It  is  destroyed  by  a 
sale  under  the  mortgage.^  ''The  whole  object  of  the  re- 
cording acts  is  to  protect  subsequent  purchasers  and  en- 
cumbrances against  previous  deeds,  mortgages,  etc.,  which 
are  not  recorded,  and  to  deprive  the  holder  of  the  prior 
unregistered  conveyance  or  mortgage  of  the  right  which 
his  priority  would  have  given  him  at  the  common  law. 
The  recording  of  a  deed  or  mortgage,  therefore,  is  con- 
structive notice  only  to  those  who  have  subsequently  ac- 
quired some  interest  or  right  in  the  property  under  the 
grantor  or  mortgagor."  ^  The  actual  possession  of  land 
by  a  purchaser  holding  a  bond  for  a  deed,  is  notice  to 
all  of  his  rights.  The  recording  of  a  subsequent  deed 
or  mortgage  affords  no  notice  whatever  to  such  prior 
purchaser.  If  he  has  no  actual  notice  of  a  subsequent 
conveyance,  he  may,  without  incurring  any  liability  to 
a  subsequent  vendee  or  mortgagee,  make  the  payment 
agreed  upon  to  his  vendor.^ 

§  713.  Record  is  notice  only  to  purchasers  under 
same  grantor. — Courts,  frequently,  in  cases  where  it  is 
not  necessary  that  they  should  speak  with  precision  of 
what  persons  are  embraced  under  the  category  of  subse- 

»  King  V.  McCuUy,  38  Pa.  St.  76. 

*  Chancellor  Walworth  in  Stuyvesant  v.  Hall,  2  Barb.  Ch.  151,  158. 
See,  also,  James  v.  Brown,  11  Mich.  25;  Straight  v.  Plarris,  14  Wis.  509; 
Deuster  v.  McOamus,  14  Wis.  307;  Birnie  v.  Main,  29  Ark.  591 ;  Kyle  v. 
Thompson,  11  Ohio  St.  6J6;  Howard  Ins.  Co.  v.  Halsey,  8  N.  Y.  271 ;  59 
Am.  Dec.  478;  Doolittle  v.  Cook,  75  111.  354;  Hoy  v.  Bramhall,  19  N.  J. 
Eq.  563;  Hill  v.  McCarter,  27  N.  J.  Eq.  41;  Blair  v.  Ward,  2Stockt.  Ch. 
126;  Halstead  v.  Bank  of  Kentucky,  4  Marsh.  J.  J,  558;  Dennis  v.  Bur- 
ritt,  6  Cal.  670 ;  Taylor  v.  Maris,  5  Rawle,  51 ;  Iglehart  v.  Crane,  42  111. 
201;  George  v.  Wood,  9  Allen,  80;  85  Am.  Dec.  741;  Ward's  Ex  r  w. 
Hague,  25  N.  J.  Eq.  397;  McCabe  v.  Grey,  20  Cal.  509;  Leiby  v.  Wolf, 
10  Ohio,  83;  Cooper  v.  Bigly,  13  Mich.  463;  King  v.  McVickar,  3  Sand. 
392;  Westbrook  V.  Gleason,  14  Hun.  245;  Truscott  v.  King,  6  Barb.  346; 
Raynor  v.  Wilson,  6  Hill,  469;  Van  Orden  v.  Johnson,  14  N.  J.  Eq.  376; 
82  Am.  Dec.  254;  Wheelwright  v.  Do  Peyster,  4  Edw.  Ch.  232;  Tarbell 
V.  West,  86  N.  Y.  280;  Stuyvesant  v.  Hone,  1  Sand.  Ch.  419. 

»  Dojlittle  V.  Cook,  75  111.  354. 


S  713  REGISTRATION    OF    DEEDS. 


966 


queut  purchasers,  declare  in  somewhat  comprehensive 
terms  that  subsequent  purchasers  are  bound  by  all  the 
information  they  might  obtain  from  an  examination  of 
the  records.  But  tlie  subsequent  purchasers  of  whom  the 
law  speaks  are  those  claiming  title  under  the  same 
grantor,  and  it  is  to  these  only  that  the  record  is  con- 
structive notice.^  If  a  purchaser  of  land  actually  knows 
that  anotlier  person  has  a  prior  deed  for  the  same  land, 
this  mere  fact  is  not  sufficient  to  put  him  upon  inquiry 
as  to  the  title  of  the  grantor  of  such  prior  purchaser. 
When  he  has  no  other  information,  the  subsequent 
purchaser  may  rely  on  the  presumption  that  the  title 
of  the  prior  purchaser,  whatever  it  may  be,  is  on 
record,  as  the  law  requires  it  should  be,  and  may  act 
on  the  assumption  that  such  prior  purchaser  has  no 
title    if     the    records     disclose    none.^      Hence,    where 

1  George  v.  Wood,  9  Allen,  80;  85  Am.  Dec.  741;  Calder  v.  Chapman, 
52  Pa.  St.^359;  91  Am.  Dec.  163;  Long  v.  Dollarhide,  24  Cal.  218;  Hager 
V.  Spect,  52  Oal.  579;  Kerfoot  v.  Cronin,  105  111.  609;  Baker  w.  Griffin, 
50  Miss.  158;  Woods  v.  Farmere,  7  Watts,  382;  32  Am.  Dec.  772;  Losey 
V.  Simpson,  3  Stockt.  Oh.  246;  Odle  v.  Odle,  73  Mo.  289;  Tilton  v.  Hun- 
ter, 24  Me.  29 ;  Brock  v.  Headen,  13  Ala.  370 ;  Blake  v.  Graham,  6  Ohio 
St.  580;  67  Am.  Dec.  360;  Lightner  v.  Mooney,  10  Watts,  407;  Bates  v. 
Norcross,  14  Pick.  224;  Embury  v.  Conner,  2  Sandf.  98;  Keller  v.  Nutz, 
5  Serg.  &  R.  246;  Murray  v.  Ballou,  1  Johns.  Ch.  566;  Hetherington  v. 
Clark,  30  Pa.  St.  (6  Casey),  393;  Crockett  v.  Maguire,  10  Mo.  34;  Stuy- 
vesant  v.  Hall,  2  Barb.  Ch.  151;  Hoy  v.  Bramhall,  19  N.  J.  Eq.  (4  Green, 
C.  E.)  563;  Iglehart  v.  Crane,  42  111.  261;  Leiby  v.  Wolf,  10  Ohio,  80; 
Blake  v.  Graliam,  6  Ohio  St.  580 ;  67  Am.  Dec.  360 ;  Whittington  v. 
Wright,  9  Ga.  23;  Dolin  v.  Gardner,  15  Ala.  758;  Farmers'  etc.  Co.  v. 
Maltby,  8  Paige,  361;  Cook  v.  Travis,  20  N.  Y.  402;  Page  v.  Waring,  76 
N.  Y.  463;  Roberts  v.  Bourne,  23  Me.  165;  39  Am.  Dec.  614;  Holmes  v. 
Buckner,  67  Tex.  107;  Huber  v.  Bossart,  70  Iowa,  718;  Leach  i;.  Beattie, 
33  Vt.  195:  Doolittle  v.  Cook,  75  111.  354;  Cooper  v.  Bigly,  13  Mich.  463; 
James  v.  Brown,  11  Mich.  25;  Helms  v.  Chadbourne,  45  Wis.  60; 
Draude  v.  Bohrer  Mfg.  Co.,  9  Mo.  App.  249 ;  Hill  v.  McCarter,  27  N. 
J.  Eq.  41;  Tarbell  v.  West,  86  N.  Y.  280;  Howard  Ins.  Co.  v.  Halsey,  8 
N.  Y.  271;  59  Am.  Dec.  478;  Calder  v.  Chapman,  52  Pa.  St.  359;  91  Am. 
Dec.  163;  Traphagen  v.  Irwin,  18  Neb.  195. 

*  St.  John  V.  Conger,  40  111.  537.  Mr.  Justice  Lawrence,  who  delivered 
the  opinion  of  the  court,  said:  "It  is  also  urged  that  the  subsequent 
deed  from  Schenck  to  Whittemore  should  have  put  the  defendant,  and 
those  under  whom  he  claims,  upon  inquiry  as  to  whatever  title  Schenck 
had.    This  proposition  in  effect  is,  that  if  a  person  has  made  a  deed  of  a 


967  EEGISTRATION    OF    DEEDS.  §   713 

a  person  has  no  right  to  the  land,  the  registry  of  a  deed 
made  and  acknowledged  by  him,  is  not  constructive 
notice  of  its  execution  to  the  true  owner.  "It  is  only 
notice  to  after-purchasers  under  the  same  grantor.  To 
hold  the  proprietors  of  land  to  take  notice  of  the  record  of 
deeds,  to  determine  whether  some  stranger  has  without 
right  made  conveyance  of  their  lands,  would  be  a  most 
dangerous  doctrine,  and  cannot  be  sustained  with  any 
color  of  reason  or  authority."  ^  The  grantee  in  an  un- 
recorded deed  placed  on  record  a  deed  of  trust  from  him- 
self to  a  third  person,  reciting  that  it  was  made  for  the 
purpose  of  securing  two  notes  to  his  grantor.  After  the 
registration  of  the  trust  deed  the  grantor  in  the  unre- 
corded deed  conveyed  to  innocent  purchasers  for  value, 
and  it  was  held  that  as  the  trust  deed  was  not  in  the 
chain  of  their  title,  the  recording  of  it  was  not  notice  to 
them.^  In  the  absence  of  fraud  or  actual  notice,  a  grantee 
is  not  affected  with  notice  of  a  deed  fraudulently  executed 
and  recorded  by  a  married  woman  under  her  maiden 
name.^ 

tract  of  land  having  no  recorded  title,  he  must,  nevertheless,  be  sap- 
posed  to  have  had  some  title,  and  subsequent  purchasers  must  take  no- 
tice of  whatever  title  he  had.  Much  as  registry  laws  have  been  frittered 
away  by  the  doctrine  of  putting  parties  upon  inquiry,  we  do  not  think 
any  court  has  ever  gone  to  the  extent  of  adopting  this  rule ;  it  would 
substantially  defeat  the  object  of  the  registry  laws.  Their  object  is  to 
provide  a  public  record,  which  shall  furnish,  to  all  persons  interested, 
authentic  information  as  to  titles  to  real  estate,  and  enaljle  them  to  act 
on  the  information  thus  acquired.  This  rule  would  require  a  person 
purchasing  from  one  who  has  the  title  on  record,  to  take  subject  to  the 
unrecorded  deeds  of  persons  claiming  under  a  chain  of  title  having  no 
connection  oi  .ecord  with  the  true  source  of  title.  If  such  purchaser  ia 
to  be  held  to  notice  of  such  a  chain  of  title  at  all,  he  has  the  right  to 
presume,  in  the  absence  of  any  other  information,  that  whatever  title 
the  persons  claiming  under  such  chain  have,  is  on  record,  asthe  law 
requires  it  to  be,  and  that  they  have  no  title  if  the  record  shows  none." 

*  Bates  V.  Xorcross,  14  Pick.  224,  231. 

'  Kerfoot  v.  Cronin,  105  111.  609. 

'  Draude  v.  Rohrer  Christian  ^Ifg.  Co.,  9  Mo.  App.  249.  In  a  recent 
case  Gannt,  P.  J.,  after  reviewing  the  authorities  says:  "Our  conclusion 
is,  that  a  recorded  deed  by  one  who  has  no  title,  but  who  afterward 
acquires  tne  title  Vjy  recorded  deed,  is  not  constructive  notice  to  a  subse- 
quent puichascr  in  good   faith    from   the  common   grantor.     We  think 


§714  REGISTRATION    OP    DEEDS.  968 

§  714.  Illustrations. — A  conveyed  to  B  two  tracts  of 
land  by  aa  absolute  deed,  taking  a  portion  of  the  consid- 
eration in  money  and  the  balance  in  the  notes  of  the  pur- 
chaser. Subsequently  B  sold  and  conveyed  one  of  these 
tracts  to  C,  by  a  deed  which  was  likewise  absolute.  But 
in  this  latter  transfer  no  money  was  paid,  B  taking  the 
notes  of  C,  who  had  notice  that  B  was  still  indebted  to  A. 
A  year  afterward,  B,  with  the  consent  and  approval  of  C, 
executed  a  trust  deed  which  embraced  both  these  trusts,  to 
secure  to  A  the  amount  of  the  purchase  money  remain- 
ing due  him.  Although  C  had  agreed  to  join  in  this 
deed  of  trust,  as  a  matter  of  fact,  he  did  not  do  so.  After 
the  execution  of  the  trust  deed,  C  sold  and  conveyed  the 
one  tract  he  had  purchased  to  D.  The  latter  made  no 
search  in  the  recorder's  office  and  had  no  actual  knowl- 
edge of  the  trust  deed,  and  it  was  held  that  he  was  a 
bona  fide  purchaser,  unaffected  by  the  trust  deed.  "The 
rule  upon  this  state  of  facts,"  said  the  court,  "  is  under- 
stood to  be,  that  the  purchaser  of  the  legal  title  is  not 
bound  to  take  notice  of  a  registered  lien  or  encumbrance 
of  an  estate,  created  by  any  person  other  than  those 
through  whom  he  is  compelled  to  deraign  his  title."  ^  A 
purchaser  from  A,  a  trustee,  is  not  charged  with  notice 
of  the  trust  from  the  fact  that  B  executed  a  deed  to  C,  re- 
citing the  execution  of  a  declaration  of  trust  on  the  part 
of  A.^  Nor  is  the  registration  of  a  deed  between  third 
persons,  notice  to  a  purchaser  at  an  execution  sale  who 
does  not  claim  under  such  deed.^  Following  out  the 
principle  that  a  purchaser  of  land  is  not  charged  with 
constructive  notice  of  any  fact  which  is  not  connected 
with  the  course  of  his  title,  it  is  held  that  he  is  not  pre- 

that  vftien  he  searches  till  he  finds  the  deed  by  which  his  grantor  ac- 
quires the  title,  he  is  not  bound  to  look  for  deeds  made  prior  to  that 
time.  Such  prior  deeds  are  not '  in  the  line  of  title,'  as  that  term  is  used 
by  conveyancers  and  searchers" :  Ford  v.  Unity  Church  Society,  120 
Mo.  498;  41  Am.  St.  Rep.  711. 

'  Baker  v.  Griflan,  50  Miss.  158,  163.  See,  also,  Harper  v.  Hopkins, 
34  Miss.  472. 

»  Murray  v.  Ballou,  1  Johns.  Ch.  566. 

*  Keller  v.  Nutz,  5  Serg.  &  K.  245. 


969  REGISTRATION    OF    DEEDS.  §   715 

sumed  to  know  of  the  registry  of  a  will  containing  a  de- 
vise of  the  land  which  he  claims  by  a  superior  title/  It 
is  said  that  a  judgment  debtor,  who  retains  possession 
of  land  sold  under  execution  against  him,  may  be  pre- 
sumed to  hold  under  the  title  of  the  purchaser  at  the 
sale.  But  in  a  case  where  a  judgment  debtor  remained 
in  possession  for  a  long  period  of  time,  claiming  that  he 
was  holding  as  the  life  tenant  of  a  purchaser  under  a 
senior  judgment,  the  deed  to  whom  had  never  been  filed 
for  record,  it  was  held  that  his  possession  could  not  be 
considered  as  constructive  notice  to  a  subsequent  mort- 
gagee, under  the  junior  judgment  of  such  asserted  title, 
or  of  the  title  of  the  one,  who,  he  claimed,  was  his  lessor.^ 
Where  a  subsequent  purchaser  has  no  actual  knowledge 
of  prior  equities,  he  is  not  charged  with  constructive 
notice  of  such  equities  because  they  are  expressed  in  the 
recitals  of  an  unauthorized  deed  duly  recorded,  from  the 
executors  of  an  individual  through  whose  heirs  the  sub- 
sequent purchaser  derives  his  title.* 

§  715.  Record  of  deeds  subsequent  to  mortgag'e  not 
notice  to  mortg-agee. — It  results  from  the  principle  we 
have  just  stated  that  after  the  registration  of  a  mortgage, 
the  mortgagee  is  not  charged  with  notice  of  deeds  or 
mortgages  subsequently  made  by  the  mortgagor.*     "  The 

1  Woods  V.  Farmere,  7  \Vatt3,  382;  32  Am.  Dec.  772. 

»  Cook  V.  Travis,  20  N.  Y.  400. 

"  Blake  v.  Graham,  6  Ohio  St.  580 ;  67  Am.  Dec.  360.  The  court  said 
that  this  rule  rested  on  the  reason,  "tliat  a  searcher  can  be  fairly  sup- 
posed to  be  made  acquainted  with  the  contents  of  such  deeds  only  as,  in 
the  process  of  tracing,  link  by  link,  his  chain  of  title  on  the  record,  nec- 
essarily pass  under  his  inspection." 

*  Iglehart  v.  Crane,  42  111.  261;  King  v.  McVickar,  3  Sand.  Ch.  192; 
Birnie  v.  Main,  29  Ark.  591;  Cooper  v.  Bigly,  13  Mich.  463;  Heaton  v. 
Prather,  84  III.  330;  James  v.  Brown,  11  Mich.  25;  Stuyvesant  v.  Hone, 
1  Sand.  Cli.  419 ;  George  v.  Wood,  9  Allen,  80;  83  Am.  Dec.  741 ;  Deiister 
V.  McCamus,  14  Wis.  307;  Howard  Ins.  Co.  v.  Ilalsey,  8  N.  Y.  271;  59 
Am .  Dec.  478 ;  Straight  v.  Harris,  14  Wis.  509 ;  Doolittle  v.  Cook,  75  111.  354 ; 
Westbrook  v.  Gleason,  14  Hun,  245;  Van  Orden  v.  Johnson,  14  N.  J.  Eq. 
376;  82  Am.  Dec.  254;  Halstead  v.  Bank  of  Kentucky,  4  Marsh.  J.  J.  555; 
Wheelwright  v.  De  Peyster,  4  Edw.  Ch.  232;  3  Am.  Dec.  345  ;  Truscott  v. 
King,  6  Barb.  346;  Blair  v.  Ward,  10  N.  J.  Eq.  (2  Stockt.  Ch.)  119;  Tal- 


§  715  REGISTRATION    OF    DEEDS.  970 

effect  of  recording  a  mortgage  or  other  conveyance  is  not 
retrospective,  or  its  object  to  effect  rights  already  vested 
and  secured,  and  a  mortgagee,  after  having  his  deed 
recorded,  is  not  required  to  search  the  record  from  time 
to  time  to  see  whether  other  encumbrances  have  been 
put  upon  the  land  with  which  he  is  in  nowise  con- 
cerned/'^ Where  there  are  two  mortgages,  the  court 
may  prevent  the  first  mortgagee,  in  case  he  has  released 
lands  primarily  liable  for  his  claim  to  the  prejudice  of 
the  second  mortgagee,  whose  lien  extends  to  only  part  of 
the  lands  affected  by  the  first  mortgage,  from  enforcing 
his  mortgage  upon  the  land  included  in  both  mortgages, 
until  he  makes  a  deduction  of  the  value  of  the  land 
released  from  this  debt.  But  this  action  will  not  be 
taken  unless  the  first  mortgagee  has  knowingly  prejudiced 
the  rights  of  the  other.  He  is  not  liable  to  these  conse- 
quences if  he  releases  without  notice,  and  the  record  is 
not  notice  for  this  purpose.^  "  The  law  requires  every 
man  so  to  deal  with  his  own  as  not  unnecessarily  to  injure 
another.  He  may  sell  his  property  to  whom  he  pleases, 
■without  consulting  his  neighbor,  or  inquiring  how  it  may 
affect  his  interests.  And  if  he  take  a  mortgage  of  A  to- 
day, he  may  to-morrow  or  next  week  release  a  part  or  the 
whole  of  the  mortgaged  premises,  on  the  request  of  the 
mortgagor,  without  troubling  himself  to  inquire  whether 
in  the  meantime  some  one  has  not  taken  a  subsequent 
mortgage,  and,  if  so,  whether  it  would  be  agreeable  to  such 
person  that  he  should  release.  It  is  the  duty  of  a  sub- 
sequent mortgagee,   if    he    intends  to  claim   any   rights 

mage  v.  Wilgers,  4  Edw.  Ch.  239,  n ;  Hoy  v.  Bramhall,  19  N.  J.  Eq.  563; 
Taylor  v.  Maris,  5  Rawle,  51;  Leiby  v.  Wolf,  10  Ohio,  83;  Hill  v.  McOar- 
ter,  27  N.  J.  Eq.  41;  Raynor  v.  Wilson,  6  Hill,  469;  Patty  v.  Pease,  8 
Paige,  277 ;  85  Am.  Dec.  683 ;  Kipp  v.  Merselis,  30  N.  J.  Eq.  99 ;  Meacham 
V.  Steele,  93  111.  135;  Cogswell  v.  Stout,  32  N.  J.  Eq.  240;  Guion  v. 
Knapp,  6  Paifje,  35;  29  Am.  Dec.  741;  Brown  v.  Simons,  44  N.  H.  475; 
Barles  v.  McGee,  1  N.  Dak.  365 ;  26  Am.  St.  Rep.  633;  48  N.  W.  Rep.  231 ; 
Briglit  V.  Buckman,  39  Fed.  Rep.  243;  Johnson  v.  Valido  Marble  Co.,  64 
Vt.  337;  25  Atl.  Rep.  441. 

^  Birnie  v.  Main,  29  Ark.  591,  595,  per  Harrison,  J. 

»  Blair  v.  Ward,  19  M.  J.  Eq.  (2  Stockt.  Ch.)  119. 


971  REGISTRATION    OF    DEEDS.  §  716 

through  the  first  mortgage,  or  that  may  affect  the  rights 
of  the  mortgagee  under  it,  to  give  the  holder  thereof  no- 
tice of  his  mortgage,  that  the  first  mortgagee  may  act  with 
his  own  understandingly.  If  he  does  not,  and  the  first 
mortgagee  does  with  his  mortgage  what  it  was  lawful  for 
him  to  do  before  the  second  mortgage  was  given,  without 
knowledge  of  its  existence,  the  injury  is  the  result  of  the 
second  mortgagee's  negligence  in  not  giving  notice. 
While  the  law  requires  every  man  to  deal  with  his  own 
so  as  not  to  injure  another,  it  imposes  a  greater  obligation 
on  the  other  to  take  care  of  his  own  property  than  on  a 
stranger  to  take  care  of  it  for  him.  And  to  make  it  the 
duty  of  the  first  mortgagee  to  inquire  before  he  acts,  lest 
he  may  injure  some  one,  would  reverse  this  rule,  and 
make  it  his  duty  to  do  for  the  second  mortgagee  what  the 
latter  should  do  for  himself.  To  affect  the  conscience, 
therefore,  of  the  first  mortgagee — for  this  whole  doctrine 
is  one  of  equity  jurisprudence,  and  not  of  positive  law — 
it  would  seem  that  he  should  have  actual  knowledsre  of 
the  second  mortgage.  We  do  not  say  notice  from  the 
second  mortgagee  is  absolutely  necessary  to  enable  him  to 
claim  the  rights  of  which  we  have  been  speaking;  but  we 
do  think  that  the  existence  of  the  second  mortgage  should 
clearly  be  brought  home  to  the  knowledge  of  the  first 
mortgagee,  in  such  a  way  as  to  show  an  intentional  dis- 
regard by  him  of  the  interests  of  the  subsequent  mort- 
gagee." ^ 

§   716.     Subsequent  purchaser  should  notify  mortgag-ee. 

If  subsequent  purchasers  or  lienholders  desire  to  obtain 
any  equity  which  they  may  compel  a  prior  mortgagee  to 
respect,  they  must  give  him  actual  notice  of  their  claims.^ 
Hence,  when  a  whole  lot  of  li^nd  is  covered  by  a  prior 
mortgage,  the  fact  that  a  builder  has  possession  of  one 
part  of  it  for  the  erection  of  a  building,  and  is  actually 
engaged  in  its  construction,  is  not  sufficient  to  charge  the 

'  James  y.  Brown,  11  Mich.  25,  30,  per  Manning?,  J. 
*  Clieever  v.  Fair,  5  Cal.  337;  Mcllvain  v.  Muiual  Assurance  Co.,  93 
Pa.  St.  30. 


§§   717,718  REGISTRATION    OP    DEEDS.  972 

mortgagee  with  notice  that  the  builder  has  a  lien,  and 
does  not  place  on  the  mortgagee  the  obligation  of  inquir- 
ing as  to  the  existence  of  the  lien,  or  invest  the  builder 
with  the  equitable  right  to  ask  for  a  reduction  of  the 
mortgage  debt  in  proportion  to  the  value  of  other  lots 
released  from  the  operation  of  the  mortgage/  But  it  was 
held,  in  Michigan,  that  where  the  land  mortgaged  was 
situated  on  one  of  the  main  streets  of  the  village  in  which 
the  mortgagee  resided,  and  a  purchaser  of  a  part  of  the 
land  had  promptly  placed  his  deed  on  record,  and  went 
into  actual  possession  of  the  premises  and  made  improve- 
ments to  them  as  a  place  of  residence,  the  knowledge  of 
these  facts  on  the  part  of  the  mortgagee  was  sufficient  to 
put  him  upon  inquiry  before  releasing  from  the  operation 
of  the  lien  of  the  mortgage  other  parts  of  the  whole  tract.^ 

§  717.  Actual  notice. — If  the  deed  of  the  purchaser  is 
recorded,  and  the  mortgagee  is  notified  by  letter  of  the 
sale  and  the  name  of  the  buyer,  he  cannot  release  any 
part  of  the  land  to  the  prejudice  of  such  purchaser.^  A 
mortgagee  has  a  right  to  presume,  when  he  has  no  express 
notice  of  anything  to  put  him  upon  inquiry,  that  the  con- 
dition of  afi'airs  is  the  same  as  when  his  mortgage  was 
executed,  and  that  the  mortgagor  is  still  the  owner;  and 
mere  possession  by  itself  alone,  without  the  mortgagee's 
knowledge  of  who  has  possession,  or  knowledge  of  any 
facts  to  excite  inquiry,  does  not  amount  to  notice.*  But 
if  he  has  actual  notice  of  a  subsequent  deed,  a  release  of 
a  part  of  the  mortgaged  premises,  to  the  prejudice  of  the 
grantee,  will  have  the  eftect  of  discharging  his  lien  to  the 
extent  of  the  value  of  the  land  removed  from  the  opera- 
tion of  the  mortgage.* 

§  718.  Notice  of  unrecorded  deed.  —  If  succeeding 
deeds  contain  proper  recitals,   a  party  may  be   charged 

1  Mcllvain  v.  Mutual  Assurance  Co.,  93  Pa.  St.  30. 

*  Dewey  v.  Ingersoll,  42  Mich.  17. 

*  Hall  V.  Edwards,  43  Mich.  473. 

*  Cogswell  V.  Stout,  32  N.  J.  Eq.  240. 

^  Cogawell  V.  Stout,  supra.    See  Gilbert  v.  Haire,  43  Mich.  283. 


973  REGISTRATION    OF    DEEDS.  §  718 

with  constructive  notice  of  prior  unrecorded  deeds.  But 
if  a  grantee  in  an  unrecorded  deed  conveys  tlie  land  de- 
scribed therein  to  a  party,  and  the  latter  to  another,  and 
neither  of  the  two  deeds  last  executed  contains  any  refer- 
ence to  the  unrecorded  deed,  the  record  of  these  latter 
deeds  gives  no  notice  of  the  unrecorded  deed.^  And  in  this 
connection  it  may  be  observed  that  a  purchaser  is  not 
charged  with  notice  that  there  exists  an  adverse  unre- 
corded deed  of  the  land  purchased  by  him,  from  the  mere 
fact  that  before  the  purchase,  in  an  interview  with  his 
grantor,  he  was  informed  by  him  that  he  was  not  able  to 
make  a  good  title,  but  would  be  in  a  short  time.^  Both 
parties  claimed  title  from  a  common  source.  One  claimed 
under  a  deed  to  A,  which  was  first  executed,  but  was  not 
recorded  until  after  the  record  of  a  deed  to  B,  under  whom 
the  other  party  claimed.  It  was  held  that  it  was  imma- 
terial that  the  deed  from  A  was  recorded  before  the  deed 
to  B.  If  the  latter  deed  had  acquired  priority  by  reason 
of  its  precedence  on  the  record,  no  valid  title  against  it 
could  be  obtained  from  A.  It  was  also  held  to  be  imma- 
terial that  A's  deed  was  recorded  prior  to  a  deed  from  B, 
or  from  the  latter's  grantee,  for  if  the  latter  is  protected 
by  the  recording  laws,  so  are  all   claiming  under  him.^ 

'  The  City  of  Chicago  v.  Witt,  75  111.  211. 

*  The  City  of  Chicago  v.  Witt,  supra. 

»  Page  V.  Waring,  76  N.  Y.  463.  See,  also,  Eoberts  v.  Bourne,  23  Me. 
165;  39  Am.  Dec.  614;  Felton  v.  Pitman,  14  Ga.  536;  Calder  v.  Cliap- 
man,  52  Pa.  St.  359;  91  Am.  Dec.  163;  Fenno  v.  Sayre,  3  Ala.  458;  Har- 
Tiav.  Arnold,  1  R.  I.  125;  Lightner  v.  Mooney,  10  Watts,  407;  Cook  v. 
Travis,  22  Barb.  338.  "An  open  and  continued  possession  of  land  by  a 
person  having  an  unrecorded  deed,  and  claiming  the  land  as  his  own,  ia 
not  presumptive  notice  of  the  existence  of  such  a  deed,  to  a  subsequent 
purchaser.  If  a  deed  could  be  presumed  from  possession,  it  would  not 
be  necessary  to  record  it.  Possession,  though  evidence  of  some  title,  is 
not  necessarily  evidence  of  any  particular  title,  but  should  put  the  party 
on  inquiry ;  and  the  intent  of  the  registry  act  is  to  protect  purchasers 
from  secret  or  concealed  conveyances,  by  requiring  every  deed  to  be  re- 
corded, on  the  peril  of  forfeiture  of  the  estate"  :  Harris  v.  Arnold,  supra. 

In  Felton  v.  Pitman,  gwpra,  the  court  say:  "Mr.  Pitman  is  about  to 
purchase  lot  No.  374,  in  Sumter  county,  of  Allen  Marshall,  who  informs 
him  that  he  derived  title  from  Mrs.  Jane  Carlisle,  the  only  heir  at  law 
of  Benjamin  Carlisle,  deceased,  and  also  from  the  estate  of  said  deceased. 


§§  719-721  REGISTRATION    OF    DEEDS.  974 

When  a  person  has  notice  of  an  unrecorded  deed  he  is 
considered  as  having  notice  also  of  its  contents.^ 

§  719.  Unrecorded,  deed,  and  recorded  purchase 
money  mortg-ag-e. — If  a  person  sells  a  piece  of  land  exe- 
cuting a  deed  therefor,  and  the  grantee  makes  a  mort- 
gage back,  the  deed  being  unrecorded,  the  registration  of 
the  mortgage  is  not  notice  of  the  existence  of  the  unre- 
corded deed.^ 

§  720.  Comments. — In  such  a  case,  the  title  upon  the 
records  would  appear  to  be  in  the  grantor,  and  if  a  third 
person  should  execute  a  mortgage  to  him,  its  record  could 
not  of  itself  alone  give  any  notice  that  the  mortgagor  had 
title  under  a  prior  unrecorded  deed.  It  is  possible,  how- 
ever, that  if  it  could  be  shown  that  a  subsequent  pur- 
chaser had  actual  knowledge  of  this  mortgage,  aside  from 
the  presumption  of  constructive  notice  from  the  fact  of 
its  registration,  he  might  be  deemed  to  have  informa- 
tion of  sufficient  facts  to  put  him  upon  inquiry,  sCnd 
might  be  charged  with  notice  if  he  failed  to  prosecute 
it.     But  this  is  extremly  doubtful. 

§  721.  Subsequently  acquired  title  inuring-  to  benefit 
of  grantee  to  prejudice  of  purchaser. — If  a  person,  who 
has  no  title  at  the  time,  conveys  or  mortgages  a  piece  of 

How  could  the  registration  of  deeds  from  Sullivan  to  Marshall,  and  from 
Marshall  to  Rushin,  put  Mr.  Pitman  upon  inquiry  as  to  tlie  ownership  of 
this  land?  He  searches  the  records  alphabetically  to  see  whether  the 
Carlisles,  husband  or  wife,  his  original  grantors,  have  conveyed.  He 
finds  no  deed  passing  out  of  them.  What  is  there  upon  the  books  to 
direct  his  attention  or  inquiry  to  deeds,  executed  by  otlier  persons  hav- 
ing no  connection  with  the  Carlisles?  We  look  to  the  index  for  the 
names  of  the  grantor  and  grantee,  and  not  to  the  body  of  the  deed,  to 
see  what  property  they  convey.  Such  a  rule  as  this  would  devolve  upon 
every  citizen,  for  his  safety  and  security,  to  search  the  books  in  the  clerk's 
office  almost  as  diligently  as  his  Bible,  to  see  what  property  was  passing 
from  hand  to  hand,  throughout  ttj^  entire  community.  It  would  be 
practically  to  convert  him  into  that  most  odious  of  characters,  a  busy 
body  into  other  people's  matters." 

1  Hill  V.  Murray,  56  Vt.  177. 

*  Veaziet;.  Parker,  23  Me.  170;  Pierce  v.  Taylor,  23  Me.  246. 


975  REGISTRATION    OF    DEEDS.  §  721 

land  to  another  with  warrant}-,  any  title  he  may  subse- 
quently acquire  will  inure  to  the  benefit  of  the  grantee  or 
mortgagee,  and  in  some  States,  this  rule  prevails  by 
force  of  statute,  even  in  the  absence  of  an  express  war- 
ranty in  the  instrument  itself.  It  is  held  that  this  prin- 
ciple applies  to  a  case  where  the  grantor  procures  title 
and,  at  the  same  time,  conveys  or  mortgages  the  premises 
to  another.  The  title  thus  acquired  inures  to  the  benefit 
of  the  first  grantee  under  the  deed  made  prior  to  the  ac- 
quisition of  title/  A  person  purchased  a  piece  of  land 
and  put  his  son  into  possession,  who  forged  a  deed  of  the 
land  from  his  father  to  himself  and  placed  it  upon  record. 
Subsequently  the  son,  for  the  purpose  of  securing  a  loan, 
executed  a  mortgage  with  covenants  of  warranty.  Some 
years  afterward  the  father  made  a  deed  to  his  son,  and 
this  was  placed  upon  record.  Afterward  the  son  conveyed 
the  land  to  another,  who  purchased  it  for  a  full  consider- 
ation without  notice  of  the  mortgage.  It  was  held  by  a 
majority  of  the  court  that  the  record  of  the  mortgage  was 
constructive  notice  to  such  subsequent  purchaser,  and, 
under  the  recording  laws,  was  entitled  to  priority  over 
his  title.^  Commissioner  Earl,  who  spoke  for  the  majority 
of  the  court,  said:  "  It  is  a  j)rinciple  of  law,  not  now  open 
to  doubt,  that  ordinarily,  if  one  who  has  no  title  to  lands, 
nevertheless  makes  a  deed  of  conveyance  with  warranty, 
and  afterward  himself  purchases  and  receives  the  title,  the 

1  Jarvis  v.  i^ikma,  25  Vt.  635;  Wark  v.  Willard,  13  N.  H.  389;  Tefft 
y.  Munson,  57  >..  Y.  97 ;  Doyle  v.  Peerless  etc.  Co.,  44  Barb.  239;  Pike  v. 
Galvin,  29  Me.  183;  Kimball  v.  Blaisdell,  5  N.  H.  533;  22  Am.  Dec.  476; 
Somes  V.  Skinner,  3  Pick.  52;  Farmer's  L.  &  T.  Co.  v.  Maltby,  8  Paige, 
361;  Salisbury  Savings  Society  v.  Cutting, -50  Conn.  113;  Philly  v. 
Sanders,  11  Ohio  St.  490;  78  Am.  Dec.  316;  Douglass  v.  Scott,  5  Ohio, 
194;  Crane  v.  Turner,  67  N.  Y.  437;  ChriHty  v.  Dana,  34  Cal.  548;  42 
Cal.  174;  Kirkaldie  v.  Larrabee,  31  Cal,  455;  89  Am.  Dec.  205;  Gotham 
V.  Gotham,  55  N.  H,  440;  Cooke  v.  Watson,  30  N.  J.  Eq.  345;  Lemon  v. 
Terhune,  40  N.  J.  Eq.  364 ;  Russ  v.  Alpaugh,  118  Mass.  369;  19  Am.  llep. 
46-1;  Knight  v.  Thayer,  125  Mass.  25;  Boone  v.  Armstrong,  87  Ind.  168; 
Mclnniss  v.  Pickett,  65  Miss.  354;  3  So.  Rep.  660;  Kaiser  v.  Earhart,  64 
Miss.  492;  1  So.  Rep.  6:35;  Bramlett  v.  Roberts,  68  Miss.  325;  10  So. 
Rep.  56;  Edwards  v.  Hillier,  70  Miss.  803;  13  So.  Rep.  692. 

«  Tefft  V.  Munson,  57  N.  Y.  97. 


§  721  REGISTRATION    OF   DEEDS.  976 

same  will  vest  immediately  in  his  grantee,  who  holds  his 
deed  with  warranty  as  against  such  grantor  by  estoppel. 
In  such  case  the  estoppel  is  held  to  bind  the  land,  and  to 
create  an  estate  and  interest  in  it.  The  grantor,  in  such 
case,  being  at  the  same  time  the  warrantor  of  the  title, 
which  he  has  assumed  the  right  to  convey,  will  not,  in  a 
court  of  justice,  be  heard  to  set  up  a  title  in  himself 
against  his  own  prior  grant;  he  will  not  be  heard  to  say 
that  he  had  not  the  title  at  the  date  of  the  conveyance,  or 
that  it  did  not  pass  to  his  grantee  in  virtue  of  his  deed.^ 
And  the  doctrine,  as  will  be  seen  by  these  authorities,  is 
equally  well  settled  that  the  estoppel  binds  not  only 
the  parties,  but  all  privies  in  estate,  privies  in  blood, 
and  privies  in  law;  and  in  such  case,  the  title  is  treated 
as  having  been  previously  vested  in  the  grantor,  and  as 
having  passed  immediately  upon  the  execution   of  his 

deed,  by  way  of  estoppel Assuming  it  to  be  the 

rule  that  the  record  of  a  conveyance  made  by  one  having 
no  title  is  ordinarily  a  nullity,  and  constructive  notice  to 
no  one,  the  plaintiff  cannot  avail  himself  of  this  rule,  as 
he  is  estopped  from  denying  that  the  mortgagor  had  the 
title  at  the  date  of  the  mortgage."  But  Commissioner 
Reynolds,  with  whom  concurred  Chief  Commissioner 
Lott,  dissented  from  these  views,  and  said:  "  The  forged 
deed  was,  of  course,  a  nullity,  and  could  not  in  the  eye  of 
the  law  have  any  effect  by  way  of  constructive  notice  or 
otherwise.  It  conveyed  nothing,  and  was  not  a  '  convey- 
ance' within  the  meaning  of  the  recording  acts,  and  did 
not  affect  the  title  to  the  land  'in  law  or  in  equity.'  It 
may  be  assumed,  therefore,  that  the  loan  commissioners 
took  the  mortgage  knowing  that  Martin  B.  Perkins  had 
no  title,  it  being  very  clear  that  they  acquired  no  legal 
rights  by  being  imposed  upon,  against  anyone  save  Mar- 
tin B.  Perkins.     They  got  no  interest  in  the  land,  either 

1  Citing  Wark  v.  Willard,  13  N.  H.  389;  Kimball  v.  Blaisdell,  5  N.  H. 
533;  22  Am.  Dec.  476;  Somes  v.  Skinner,  3  Pick.  52;  The  Bank  of 
Utica  V.  Mesereau,  3  Barb.  Ch.  528,  667 ;  49  Am.  Dec.  189 ;  Jackson  v. 
Bull,  1  Johns.  Cas.  81,  90;  White  v.  Patten,  24  Pick.  324;  Pike  v.  Gal- 
vin,  29  Me.  183. 


977  REGISTRATION    OF    DEEDS.  §  721 

in  law  or  equity.  It  is  not  in  principle  unlike  the  case  of 
a  forged  negotiable  promissory  note,  where  a  bona  fide 
holder  for  value  can  have  no  protection.  It  follows,  there- 
fore, that  the  entry  of  the  mortgage  in  the  books  of  the 
loan  office  at  the  time  it  was  made  was  of  no  legal  conse- 
quence whatever,  except  as  against  the  mortgagor.  It 
was  no  notice  under  the  recording  acts,  for  it  did  not  in 
the  remotest  degree  affect  the  title  to  the  land  described 

in  it It  is  urged   that  there  was  no   necessity  of 

making  any  further  record  of  the  mortgage,  because  the 
title  in  the  mortgagees  comes  under  the  warranty  by  way 
of  rebutter  or  estoppel.  This  will  not  do.  It  is  sufficient 
to  say  that  by  virtue  of  the  transactions  under  which  the 
defendants  look  to  enforce  the  lien  of  the  mortgage,  the 
title  to  the  land  is  affected,  and  such  a  paper  must  be 
properly  put  on  record  to  bind  subsequent  purchasers  ia 
good  faith.  If  this  be  not  so,  it  is  impossible  to  see  how 
a  subsequent  bona  fide  purchaser  can  have  any  protection, 
and  when  it  is  said  to  be  impossible  to  record  the  estop- 
pel which  gave  the  mortgage  vitality,  it  may  be  answered, 
that  until  the  estoppel  became  operative,  the  mortgage 
was  a  nullity,  and  the  record  of  it  no  notice  whatever. 
When,  however,  Martin  B.  Perkins  obtained  the  title  to 
the  premises,  it  became  by  some  operation  of  law  valid 
against  him,  but  it  was  of  no  greater  force  or  effect,  than 
if  he  had  on  that  day  given  it  to  the  loan  commissioners. 
It  then  for  the  first  time  affected  the  title  to  the  land,  and 
in  order  to  bind  subsequent  purchasers  in  good  faith 
must  be  duly  recorded,  and  this  was  not  done  in  any  such 
way  as  to  operate  as  constructive  notice  under  the  record- 
ing acts.  It  is  not  questioned  but  that  the  plaintiff  is  to 
be  protected  as  a  bona  fide  purchaser  for  value,  unless  the 
mortgage  given  in  1850,  and  then  entered  in  proper  order 
in  the  books  of  the  loan  office,  which  at  the  time  did  not 
affect  the  title  to  the  land  in  any  way,  was  constructive 
notice  of  the  lien.  It  is  well  settled  that  a  conveyance 
that  is  not  duly  recorded  according  to  law,  even  when  the 
actual  title  has  passed,  is  not  effectual,  as  constructive  no- 

Ueeds,  Vol.  II. —62; 


§  722  REGISTRATION    OF    DEEDS.  978 

ticB.  Much  less  can  it  be,  that  a  conveyance  which  does 
not  affect  the  title  can  give  any  legal  notice  whatever. 
In  the  very  best  aspect  of  the  defendant's  case,  the  record 
of  the  mortgage  was  made  out  of  the  order  required  by 
law,  and  failed  to  give  notice  to  anybody  dealing  with  the 
title  to  the  land.  In  this  view  the  deed  of  the  plaintiff 
was  first  recorded,  and  he  is  entitled  to  protection  in  his 
title."  ^ 

§  722,  Comments. — Of  course,  the  legal  principle  that 
an  after-acquired  title  of  the  grantor,  when  there  is  an 
express  or  implied  covenant  of  warranty,  inures  to  the 
benefit  of  the  grantee,  cannot  be  disputed.  This  rule  is 
founded  on  the  principle  of  estoppel,  and  it  cannot  be 
contended  that  such  estoppel  does  not  bind  privies  as 
well  as  the  grantor  himself.  But  it  does  seem  that  some 
way  should  be  provided  for  giving  notice  of  this  after- 
acquired  title  by  the  record.  The  theory  of  our  registra- 
tion laws  is,  that  the  records  disclose  all  interests  and 
claims  affecting  title  to  real  estate.  It  is  against  their 
policy  to  allow  claims  to  be  set  up  founded  on  facts  or 
transactions  of  which  the  records  give  no  information. 
And  it  is  essential  to  the  security  of  land  titles  and  to 
their  marketable  value,  that  the  community  should  know 
that  they  may  deal  with  perfect  confidence  on  the  as- 
sumption that  the  title  is  such  as  the  records  show  it  to 
be.  A  person  taking  a  chain  of  title,  and  following  it 
down  until  he  finds  the  title  in  a  certain  person,  may  gen- 
erally act  on  the  belief  that  such  person  is  the  owner  of 
the  title.  But  in  the  case  we  have  been  considering  in 
the  previous  section,  he  cannot  always  safely  do  tins. 
Suppose  that  A  is  the  owner  of  a  piece  of  land,  and  B  has 
no  title  whatever  to  it,  but  nevertheless  conveys  it  by  deed 
with  covenant  of  warranty  to  C,  who  has  his  deed  re- 
corded. A  person  searching  the  records  would  find  the 
title  in  A,  and  if  A  conveyed  his  title  to  B,  he  would  find 
that  A's  title  had  passed  to  B,  and  would  naturally  con, 

*  Tefft  V.  Munson,  57  N.  Y.  101. 


979  REGISTRATION    OF    DEEDS.  §  723 

elude  that  B  was  the  owner,  if  he  found  no  subsequent 
conveyances  from  B.  But  if  B  had  previously  conveyed 
the  land  to  C,  with  covenant  of  warranty  as  we  have  sup- 
posed, his  title  would,  by  the  doctrine  of  estoppel,  inure 
at  once  to  the  benefit  of  C.  If  B,  after  acquiring  the  title, 
should  convey  to  D,  the  latter  would  obtain  no  title, 
because  his  grantor  had  none  to  convey,  whatever  he  had 
having  passed  to  C.  There  is  no  escape  from  this  conclu- 
sion. Yet  it  must  be  apparent  that  a  person  who  relied 
upon  the  records  alone  for  the  chain  of  title  would  be 
misled.  It  certainly  is  desirable  that  some  method  should 
be  provided  of  having  the  record  show  all  the  rights  of 
the  parties.  This  might  be  partially  attained  in  the  case 
under  consideration  by  giving  the  grantee  under  the  prior 
deed  a  specified  time  after  knowledge  of  the  acquisition 
of  title  by  the  grantor  in  which  to  re-record  his  deed. 

§  723.     How    far    back    purchaser    must    search. — In 

ordinary  practice,  a  person  who  relies  upon  his  own 
examination  of  the  records  will  feel  perfectly  satisfied 
with  the  grantor's  title,  if  he  finds  that  title  vested  in 
him  at  a  particular  date,  and  nothing  occurring  subse- 
quently to  affect  it.  Such  purchaser  will  not  generally 
search  the  records  to  ascertain  if,  anterior  to  the  acqui- 
sition of  title,  the  grantor  had  not  made  some  transfer  of 
it.  The  interesting  question  presents  itself  of  how  far 
back  it  is  the  duty  of  an  intending  purchaser  to  search 
for  conveyances  from  his  grantor.  May  he  act  on  the 
assumption  that  no  conveyances  have  been  made  by  the 
grantor  previously  to  the  time  that  he  obtained  title,  or 
is  he  compelled  to  search  beyond  this  period?  The  au- 
thorities do  not  afford  a  positive  and  unanimous  answer 
to  this  question.  On  one  hand,  the  rule  announced  by 
the  Supreme  Court  of  Missouri  is,  that  a  purchaser  must, 
at  his  risk,  inquire  into  the  condition  of  the  record  title 
of  his  grantor,  and  will  be  charged  with  constructive 
notice  of  all  conveyances  made  by  him  affecting  the  title, 
which  have  been  duly  recorded.     The  court  applied  this 


§  723  REGISTRATION    OF   DEEDS.  980 

rule  in  a  case  where  a  person,  having  a  bond  for  a  deed, 
sold  and  assigned  it  to  another,  who,  in  turn,  conveyed  it 
to  a  third  person,  whom  we  will  designate  as  A.  The 
second  holder  of  the  bond,  however,  conveyed  in  trust  all 
his  right,  title,  and  interest  in  the  premises  to  secure  a 
portion  of  money  due  to  his  immediate  grantor  before  he 
conveyed  his  interests  to  A,  the  third  party.  This  deed 
of  trust  was  duly  recorded  prior  to  the  purchase  by  A. 
The  latter  paid  the  amount  due  upon  the  bond  to  the 
orio'inal  2:rantor  and  obtained  a  deed.  A  sale  was  had 
under  the  trust  deed,  and  the  premises  were  purchased 
by  a  person  whom  we  will  designate  as  B.  The  contro- 
versy was  between  A  and  B.  B,  the  purchaser  at  the 
trustee's  sale,  tendered  to  A  the  amount  paid  by  him  to 
the  original  grantor  with  the  accrued  interest,  and  asked 
that  A  might  be  divested  of  title,  and  the  same  be  vested 
in  him.  The  court  held,  that,  although  at  the  time  the 
deed  of  trust  was  made,  the  grantor  therein  had  vested 
in  himself  no  title,  still  subsequent  purchasers  were 
charged  with  constructive  notice  from  the  fact  that  it 
was  recorded;  and  said  of  A,  that  if  he  had  "searched  the 
records  as  a  prudent  man  should,  he  must  have  acquired 
actual  knowledge  of  the  deed  and  its  contents,  as  shown 
by  the  record.  If  he  neglected  this  reasonable  precaution- 
ary search,  the  consequences  of  that  neglect  he  must  bear. 
It  would  be  unjust  to  visit  them  upon  an  innocent  third 
party."  ^ 

1  Digman  v.  McCollum,  47  Mo.  372,  377.  Currier,  J.,  delivered  the 
opinion  of  the  court  and  remarked :  "  The  deed  was  on  record,  and  the 
defendant,  according  to  the  plaintiff  'a  view,  must  be  presumed  to  have 
searched  the  records  and  come  to  a  knowledge  of  the  contents  of  the 
deed.  The  defendant  is  sought  to  be  affected  with  constructive  notice 
from  the  fact  that  the  instrument  was  duly  recorded.  The  general  rule 
on  this  subject  undoubtedly  is,  that  a  purchaser  must,  at  his  own  peril, 
inquire  into  the  state  of  the  grantor's  title,  since  he  will  be  affected  with 
constructive  notice  of  all  duly  recorded  conveyances  by  his  grantor 
affecting  that  title.  I  am  aware  of  no  exception  to  this  rule,  although 
it  has  repeatedly  been  decided  that  a  purchaser  is  not  affected  with  con- 
structive notice  of  anything  that  does  not  lie  within  the  course  of  the 
title  with  which  he  is  dealing,  or  that  is  not  in  some  way  connected 
with  it;    or,  as  Judge   Scott  expressed  it  in  Crockett  v.  Maguire,   10 


981  REGISTRATION    OF    DEEDS.  §  724 

§  724.  Correct  rule. — On  the  other  hand,  it  is  held 
that  a  purchaser  is  not  charged  with  constructive  notice 
of  deeds  made  by  his  grantor  before  he  acquired  title. 
This  rule,  we  believe,  is  sustained  by  the  weight  of  author- 
ity, and  may  be  declared  to  be  the  general  principle  sup- 
ported by  the  decided  cases.*  One  having  an  unrecorded 
contract  for  the  purchase  of  a  tract  of  land  executed  a 
mortgage,  which  was  placed  on  record.     The  mortgagor 

Mo.  34,  the  '  registry  of  a  deed  is  only  evidence  of  notice  to  after-pur- 
chasers from  the  same  grantor ' ;  that  is,  from  the  grantor  in  the 
registered  deed.  In  the  case  now  before  the  court,  Williams,  the 
grantor  in  the  recorded  deed  of  trust,  was  the  defendant  s  vendor,  ag 
respects  the  equitable  title  to  the  premises  in  contest.  That  title  passed 
from  him  to  the  defendant  in  virtue  of  the  transaction  between  them; 
that  is,  by  the  sale,  receipt  of  the  purchase  money,  and  delivery  of  the 
bond.  Had  Williams  passed  the  title  by  deed,  he  would  have  been  the 
defendant's  technical  grantor,  as  well  as  vendor.  But  the  form  of 
tlie  conveyance  does  not  affect  the  substance  of  the  transaction.  Will- 
iams had  an  interest  in  the  property  to  convey.  He  still  held  the 
equitable  title,  subject  to  the  encumbrances,  for  the  deed  of  trust  had 
not  then  been  foreclosed.  That  title  he  passed  to  and  vested  in  the  de- 
fendant. Is  he  not  to  be  regarded  as  the  grantor  of  that  interest?  As 
between  Williams  and  the  defendant,  they  were  dealing  with  the  equita- 
ble title  and  nothing  else.  As  respected  the  recorded  condition  of  that 
title,  was  it  not  as  much  the  business  of  the  purchaser  to  search  the 
record  as  tiiough  he  had  been  negotiating  for  the  legal  title?  Where  is 
the  difference  in  principle?  ....  If  the  defendant  searched  the 
record  of  deeds  with  common  prudence  and  care,  he  must  have  found 
the  deed  of  trust  under  which  the  plaintiff  claims,  and  thus  come  to  a 
knowledge  of  its  contents.  It  is  no  objection  to  this  view  that  Williams 
had  vested  in  liimself  no  title  of  record.  That  haj^pens  more  or  less 
frequently  in  regard  to  legal  as  well  as  equitable  estates.  Titles  are  ac- 
quired as  well  by  adverse  possession  as  by  deed.  So,  a  party  may  hold 
a  title  in  fee  under  an  unrecorded  deed.  If  a  party  has  in  fact  a  title, 
whether  of  record  or  not,  he  may  encumber  it,  and  that  may  be  shown 
by  the  record.  Prudent  men  will  make  the  proper  search  preliminary 
to  their  purchases.  The  law  presumes  that  they  do  so,  and  courts,  as 
has  already  been  remarked,  act  upon  that  presumption.  This  is  the 
unilisputed  doctrine  in  relation  to  legal  titles,  and  we  are  furnished  with 
no  decided  case,  dictum,  or  reason,  against  applying  the  rule  to  equita- 
ble as  well  as  legal  titles  and  interests." 

'  Farmers'  Loan  and  Trust  Co.  v.  Maltby,  8  Paige,  361 ;  Losey  v. 
Simj)Son,  3  Stockt.  Oh.  246;  Calber  v.  Chapman,  62  Pa.  St.  359;  91  Am. 
Dec.  163;  Page  v.  Waring,  76  N.  Y.  463;  Buckingham  v.  Hanna,  2  Ohio 
St.  551;  Doswell  v.  Buchanan,  3  Leigh,  365;  23  Am.  Dec.  280;  Hetzel  v. 
Barber,  69  N.  Y.  1. 


§724 


REGISTRATION    OF   DEEDS. 


982 


subsequently  acquired  the  title  by  deed  from  his  vendor, 
and  then  sold  the  premises  to  another,  who  had  his  deed 
duly  recorded.  It  was  held,  that  the  registration  of  the 
mortgage  having  occurred  before  the  records  disclosed 
title  in  the  mortgagor,  was  not  constructive  notice  to  the 
second  grantee,  who  purchased  the  property  after  the  title 
had  been  transferred  to  his  grantor.^ 

1  Farmers'  Loan  and  Trust  Co.  v.  Maltby,  8  Paige,  N.  Y.  361. 


i 


CHAPTER  XXIII. 

THE    DOCTRINE    OF   NOTICE. 
PART  I. 

THE  GENERAL  KULES  OF  NOTICB. 

§  725.  In  general. 

§  726.  Forged  deeds. 

§  727.  Notice  and  knowledge. 

§  728.  Kinds  of  notice. 

§  72i).  Rumors. 

§  730.  Same  subject  continued— Illustrations. 

§  731.  Partnership  property. 

§  731a.  Information  imparted  to  purchaser  that  title  is  in  one  partner. 

§  732.  Information  must  be  from  credible  source. 

§  733.  Inadequacy  of  price. 

§  734.  Statement  from  holder  of  advei-se  title. 

§  735.  Information  given  by  recorder. 

§  736.  Time  of  payment  of  consideratdon. 

§  737.  Intimate  relationship  Oir  business  connections. 

§  73S.  Notice  of  a  trust. 

§  73Sa.  Designation  of  grantee  as  trustee. 

§  739.  Structures  upon  the  land. 

§  740.  Searching  the  record  not  alone  sufficient. 

§  741.  Further  inquiry. 

§  742.  Contradiction  of  information. 

§  743.  Wliat  is  due  inquiry. 

§  744.  Third  persons. 

§  745.  Presumption  may  be  rebutted. 

§  746.  Second  purchaser  without  notice. 

§  747.  Second  purchaser  with  notice  from  bona  fide  purchaser. 

§  748.  Former  owner  with  notice. 

§  749.  Tenant  in  common  without  notice. 

§  7.50.  Notice  of  intention  to  execute  a  deed. 

§  T51.  Fraud. 

§  7r>2.  Negligence. 

§  753.  Notice  of  right  of  way  from  ordinance, 

§  754.  Laying  down  sadewalk. 

§  755.  De(-d  from  surviving  widow. 

§  756.  Notice  of  lien. 

(983) 


§  725  THE    DOCTRINE    OF    NOTICE.  984 

§  757.  ExooptiDn  of  oncnmbrnnoo  in  covenant. 

§  758.  Dood  modified  by  annexed  schedule. 

§  759.  Notice  from  title  deeds  not  between  parties. 


PART    II. 

POSSESSION. 

§  7G0.  Possession  as  notice. 

§  7G1.  Possessiion  by  grantor— CommeHts. 

§  762.  View  that  possession  is  notice  of  grantor's  rights. 

§  763.  Opposite  view— Possession  not  notice  of  grantor's  rights. 

§  764.  (Commentsi 

§  765.  Absolute  deed  and  grantor's  possession  under  um'ecorded  de- 
feasance. 

§  766.  Paro'l  evidence  to  show  grantor's  right  of  possession. 

§  767.  Absolute  deed  with  mortgage  for  support. 

§  768.  Residence  of  husband  and  wdfe. 

§  769.  'Character  of  possession. 

§  770.  Possession  under  one  kind  of  right  as  notice  of  other  rights. 

§  771.  Sign  of  real  estate  agent. 

§  772.  Possession  of  church. 

§  773.  Possession  distinct. 

§  774,  Possession  continuous. 

§  775.  Tenant's  possession  as  notice  of  landlord's  title. 
§  775a.  Notice  from  clause  of  option  to  purchase  in  lease. 

§  776.  Comments. 

§  777.  An  inference  of  fact. 

PART  III. 


AGENCY. 

§  778. 

Notice  to  an  agent. 

§  779. 

Matter  material  to  the  transaction. 

§  780. 

Agent  for  both  parties. 

§  781. 

Fraud  of  agent. 

§  782. 

Notice  to  a  partner. 

§  783. 

iConsulting  attorney. 

§  784. 

Notice  to  trustee. 

§  785. 

Agent  to  examine  title. 

§   iSG. 

Advertisement  of  sale. 

§  787. 

Resale  by  vendor. 

PART  IV. 

LIS    PENDENS. 

788.  Doctrine  of  lis  pendens. 

789.  Alienation  void  as  against  judgment. 

790.  Sub.iect  continued. 

791.  Grantee  of  party  to  partition  suit. 

792.  Purchaser  from  person  not  a  party  to  suit. 


J 


985  THE    DOCTRINE    OF    NOTICE.  §  725 

§  7d2a.  Unrecorded  deed. 

§  793.  €To.ss-eomplaiut. 

§  794.  Principle  applies  also  to  actions  at  law. 

§  795.  Actions  of  ejectment. 

§  79G.  Diligence  in  prosecution  of  suit. 

§  797.     Continued. 

§  798.  Reasonable  diligence. 

§  799.  Rule  of  lis  pendens  not  favored. 

§  800.  Effect  of  lis  pendens  on  attorney's  lien  for  fees. 

§  SOI.  Suit  must  affect  specific  property. 

§  802.  When  lis  pendens  commences. 

§  803.  Statutory  lis  pendens. 

§  SM.  Effect  of  these  statutes. 

§  805.  Actual  notice. 

PART  I. 

THE   GENERAL   RULES    OP    NOTICE. 

§  725.  In  general. — It  is  a  well-settled  rule,  both  in 
England  and  in  this  country,  that  subsequent  purchasers 
who  have  notice  of  a  prior  unrecorded  deed,  acquire  their 
rights  in  subordination  to  it.  Tliey  are  affected  by  their 
knowledge  of  its  existence  in  the  same  mode,  and  to  the 
same  extent,  as  if  the  deed  had,  prior  to  their  purchase* 
been  properly  recorded.^     Courts  have  frequently  doubted 

*  Le  Neve  v.  Le  Neve,  Amb.  43G ;  Crealand  v.  Potter,  Law  R- 10  Ch.  8 
Chadwick  t-.  Turner,  Law  R.  1  Gh.  310;  Ford  v.  White,  16   Beav.  120 
Davis  V.  Earl  of  Strathmore,  16  Ves.  419;  Rolland  v.  Hart,  Law  R.  6  Ch 
678;  Benham  v.  Keane,  3  DeGex,  F.&  J.  318;  Finch  v.  Beal,  68  Ga.  594 
Greaves  v.  Tofield,  Law  R.  14  Ch.  D.  563;  Dunham  v.  Dey,  15  Johns 
555;  8  Am.  Dec.  282;  Cabecn  v.  Breckenridge,  48  111.  91  ;  Brinkman  v, 
Jones,  44  Wis.  498;  Brittou's  Appeal,  9  Wright,  172;  Tuttle  v.  Jackson 
6  Wend.  213;  21  Am.  Dec.  306;  Williamson  v.  Brown,  15  N.  Y.   354 
Maupin  v.  Emmons,  47  Mo.  304;  White  v.  Foster,  102  U.  S.  375.     And 
Bee  Wyatt  v.  Barwell,  19  Ves.  435;  Doe  v.  Allsop,  5  Barn.  &  Aid.  142 
Hine  v.  Dodd,  3  Atk.  275;  Janvrin  v.  Janvrin,  60  N.  H.  169;  JoUand  v. 
Stainbridge,  3  Vee.  478;  Brown  v.  Volkenning,  64  N.  Y.  76;  Dey  v.  Dun- 
ham, 2  Johns.  Ch.    182;  Bonner  v.  Stephens,  60  Tex.  616;  Lawton  v. 
Gordon,  37  Cal.  202;  Jackson  v.  Van  Valkenburg,  8  Cowen,  260;  Tattle 
V.  Jackson,  6  Wend.  213;  21  Am.  Dec.  306;  Bergeron  v.  Richardolt,  55 
Wis.  129;  GrimPtone  v.  Carter,  3  Paige,  421;  24  Am.   Deo.  230;  Fleming 
V.  Burgin,  2  Ired.  Eq.  584;  Craf^sen  v.  Swovcland,  22  Ind.  427:  Wilson  v 
Hunter,  30  Ind.  406;  Ellis  v.  Horrman,  90  N.  Y.  466;  Norcross  v.  Wid- 
gery,  2  Mass.  505;  McMechan  v.  Griffing,  3  Pick.  149;  15  Am.  Dec.  198; 
Truesdale  v.  Ford.  37  111.  210;  U.  S.  Ins.  Co.  v.  Shriver,  3  Md.  Ch.  381 ; 
General  Life  Ins.  Co.  v.  U.  S.   Ins.  Co.,  10   Md.  517;  69  Am.  Dec.  174; 
Lamb  v.  Pierre,  113  Mass.  72;  Clark  v.  Plumstead,  11  111.  App.57;  Allen 
V.  Holding,  29  Ga.  485;   Wyatt  v.  Elam,  19  Ga.  335;  Poulet  v.  Johnson, 
25  Ga.  403;  Allen  v.  Holden,  32  Ga.  418;  Lee  i;.  Cato,27Ga.  637;  73  Am. 


§  723  TIIK    DOCTRINE    OF    NOTICE.  9SG 

the  wisdom  of  allowing  the  question  of  notice  other  than 
that  furnished  by  the  record  to  be  litigated.  The  statutes 
l)roviding  for  a  system  of  registration  would  undoubtedly 

Dec.  746;  Brown  v.  Wells,  44  Ga.  573;  Downs  v.  Yonge,  17  Ga.  295; 
Virjrin  v.  Wingtield,  54  Ga.  451 ;  Seabrook  v.  Brady,  47  Ga.  650 ;  Bryant 
V.  Booze,  55  Ga.  438 ;  Williams  v.  Adams,  43  Ga.  407  ;  Wimbish  v.  Mont- 
gomery Mut.  Building  &  Loan  Assn.,  69  Ala.  575;  Helms  v.  May,  29  Ga. 
121;  Doe  v.  Roe,  25  Ga.  55;  Reynolds  v.  Ruckman,  35  Mich.  80;  Hom- 
mel  V.  Devinney,  39  Mich.  522 ;  Fitzhugh  v.  Barnard,  12  Mich.  105 ;  Mun- 
roe  V,  Eastman,  31  Mich.  283;  Baker  v.  Mather,  25  Mich.  51;  Hosley  v. 
Holmes,  27  Mich.  416  ;  Shotwell  v.  Harrison,  30  Mich.  179;  Cain  v.  Cox,  23 
W.Va.594;  Stetson  v.  Cook,  39  Mich.  750;  Waldo  t;.  Richmond,  40  Mich. 
380;  Case  v.  Erwin,  18  Mich.  434;  Barnard  «,  Campau,  29  Mich.  162;  Sig- 
ourney  v.  Mimn,  7  Conn.  324 ;  Wheaton  v.  Dyer,  15  Conn.  307 ;  Bank  of 
New  Milford  v.  New  Milford,  36  Conn.  94 ;  Blatchley  v.  Osborn,  33  Conn. 
226;  Clark  i;.  Fuller,  39  Conn.  238;  Bush  t;.  Golden,  17  Conn.  594 ;  Hamil- 
ton V.  Nutt,  34  Conn.  501;  Kirkwood  v.  Koester,  11  Kan.  471;  Jones  v. 
Lapham,  15  Kan.  540;  Setter  v.  Alvey,  15  Kan.  157;  Greer  v.  Higgins, 
20  Conn.  420;  Johnson  v.  Clark,  18  Conn.  157;  Lyons  v.  Bodenhamer,  7 
Conn.  455;  School  District  v.  Taylor,  19  Conn.  287;  Dearing  v.  Watkins, 
16  Ala.  20;  Boyd  v.  Beck,  29  Ala.  703 ;  Lambert  v.  Newman,  56  Ala.  623 ; 
Newsome  v.  Collins,  43  Ala.  656 ;  Wyatt  v.  Stewart,  34  Ala.  716 ;  Wallis 
V.  Rhea,  10  Ala.  451 ;  Corbett  v.  Clenny,  52  Ala.  480;  Burch  v.  Carter,  44 
Ala.  115;  De  Vandal  v.  Malone's  Executors,  25  Ala.  272;  Smith's  Heira 
V.  Branch  Bank,  21  Ala.  125;  Dudley  v.  Witter,  46  Ala.  664;  Ponder  v. 
Scott.  44  Ala.  241 ;  Johnson  v.  Thweatt,  18  Ala.  741 ;  Campbell  v.  Roach, 
45  Conn.  667;  Hoole  v.  Attorney  General,  22  Ala.  190;  Lindsay  v. 
Veasey,  62  Ala.  421 ;  Bernstein  v.  Humes,  60  Ala.  582;  31  Am.  Rep.  52; 
Chapman  v.  Holding,  60  Ala.  522;  Fair  v.  Stevenot,  29  Cal.  486;  Galland 
t;.  Jackman,  26  Cal.  79;  85  Am.  Dec.  172;  JNIossv.  Atkinson,  44  Cal.  3; 
Jones  z).  Marks,  47  Cal.  242;  O'Rourke  v..  O'Connor,  39  Cal.  442;  Smith 
V.  Yule,  31  Cal.  180;  89  Am.  Dec.  167;  Thompson  v.  Pioche,  44  Cal.  508; 
Ricks  V.  Doe,  2  Blackf.  346;  Paul  v.  Connersville  etc.  R.  R.,  51  Ind.  527, 
530;  Wiseman  v.  Hutchinson,  20  Ind,  40;  Croskey  v.  Chapman,  26  Ind. 
333;  Brose  v.  Doe,  2  Ind.  666;  Kirkpatrick  v.  Caldwell's  Administrators, 
32  Ind.  299;  Hoiman  v.  Patterson's  Heirs,  29  Ark.  357;  Stidham  v. 
Mathews,  20  Ark.  650,  659;  FoUweiler  v.  Lutz,  102  Pa.  St.  585;  Haskell 
t;.  The  State,  31  Ark.  91;  Redden  v.  Miller,  95  111.  336;  Erickson  v. 
Rafferty,  79  111.  2(^9;  Frye  v.  Partridge,  82  111.  267;  Shepardson  v. 
Stevens,  71  111.  646;  Ogden  v.  Haven,  24  111.  57;  Chicago  etc.  R.  R. 
V.  Kennedy,  70  111.  350;  Chicago  v.  Witt,  75  111.  211;  Watson  v.  Phelps, 
40  Iowa,  482;  Jones  v.  Bamford,  21  Iowa,  217;  Wilson  v.  Miller,  16  Iowa, 
111;  Smith  v.  Dunton,  42  Iowa,  48;  Blanchard  v.  Ware,  43  Iowa,  530; 
Johnston  v.  Gwathmey,  4  Litt.  317 ;  14  Am.  Dec.  135 ;  Hopkins  v.  Garrard, 
7  Mon.  B.  312;  Mueller  v.  Engeln,  12  Bush,  441;  Honore  v.  Bakewell,  6 
Mon.  B.  67 ;  43  Am.  Dec.  147 ;  Thornton  v.  Knox,  6  Mon.  B.  74 ;  Hardin 
V.  Harrington,  11  Bush,  367;  Forepaugh  ?;.  Appold,  17  Mon.B.  631;  Van- 
meter  V.  McFaddin,  8  Mon.  B.  442;  Roberts  v.  Grace,  16  Minn.  126; 


987  THE    DOCTRINE    OP    NOTICE.  §   725 

become  more  effective  if  all  conveyances  should  take  ef- 
fect in  the  order  in  which  they  are  filed  for  record,  aside 
from  any  inquiry  as  to  other  notice.     But  the  manifest 

Doughaday  v.  Paine,  6  Minn.  443;  Ross  v.  Worthington,  11  Minn.  438; 
88  Am.  Dec.  95;  Coy  v.  Coy,  15  Minn.  119;  Rich  v.  Roberts,  48  Me. 
548;  Webster  v.  Maddox,  6  Me.  256;  Hull  v.  Noble,  40  Me.  459,  480; 
Spofford  V.  Weston,  29  Me.  140;  Butler  v.  Stevens,  26  Me.  484;  Kent  v. 
Plummer,  7  Me.  464;  Goodwin  v.  Cloudman,  43  Me.  577;  Merrill  v.  Ire- 
land, 40  Me.  569;  Porter  v.  Sevey,  43  Me.  519;  Hanley  v.  Morse,  32  Me. 
2c7;  Smith  v.  Lambeths,  15  La.  Ann.  566;  Moore  v.  Jourdan,  14  La. 
Ann.  414;  Swan  v.  Moore,  14  La.  Ann.  833;  Bell  v.  Haw,  8  Martin,  N.  S., 
243;  Acer  v.  Westcott,  46  N,  Y,  384;  7  Am.  Rep,  355;  Page  v.  Waring, 
76  N.  Y.  463;  Gibert  v.  Peteler,  38  N.  Y.  165;  97  Am.  Dec.  785;  Griffith 
V.  Griffith,  1  Hoff.  Ch.  135;  Howard  Ins.  Co.  v.  Halsey,  8  N.  Y.  271 ;  56 
Am.  Dec.  478;  Murrell  v.  Watson,  1  Tenn.  Ch.  342;  Tharpe  v.  Dunlap, 

4  Heisk.  674,  686;  Mara  v.  Pierce,  9  Gray,  306;  Pingree  v.  Coffin,  12 
Gray,  288;  Sibley  v.  Leffingwell,  8  Allen,  584;  Parker  v.  Osgood,  3 
Allen,  487;  George  v.  Kent,  7  Allen,  16;  Dooley  v.  Walcott,  4  Allen, 
406;  Connihan  v.  Thompson,  111  Mass.  270;  Curtis  v.  Mundy,  3 
Met.  405;  Buttrick  v.  Holden,  13  Met.  355;  Hennessey  v.  Andrews, 
6  Cush.   170;  Lawrences.  Stratton,  6  Gush.  163;    Baynard  v.  Norris, 

5  Gill,  483;  46  Am.  Dec.  647;  Green  v.  Early,  39  Md.  223;  Johns 
V.  Scott,  5  Md.  81;  Winchester  v.  Baltimore  etc.  R.  R.,  4  Md.  231 ;  Price 
V.  McDonald,  1  Md.  403;  54  Am.  Dec.  657;  Wasson  v.  Connor,  54  Miss. 
351;  Buck  v.  Paine,  50  Miss.  648;  Allen  v.  Poole,  54  Miss.  323;  McLeod 
V.  First  Nat.  Bank,  42  Miss.  99 ;  Deason  v.  Taylor,  53  Miss.  697 ;  Avent 
V.  McCorkle,  45  Miss.  221 ;  Parker  v.  Foy,  43  Miss.  260 ;  55  Am.  Rep.  484; 
Loughridge  v.  Bowland,  52  Miss.  546,  553;  Gilson  v.  Boston,  11  Nev. 
413;  Grellett  v.  Heilshorn,  4  Nev.  528;  Majors.  Bukley,  51  Mo.  227,  231; 
Maupin  v.  Emmons,  47  Mo.  304;  Digman  v.  McCollum,  47  Mo.  372,  375; 
Ridgway  v.  Holliday,  59  Mo.  444;  Fellows  v.  Wise,  55  Mo.  413;  Eck  v. 
Hatcher,  58  Mo,  235;  Rhodes  v.  Outcalt,  48  Mo.  367;  Speck  v.  Riggin, 
40  Mo.  405;  Muldrow  v.  Robinson,  58  Mo.  331;  Masterson  v.  West  End 
etc,  R.  R.,  5  Mo.  App.  64;  Roberts  v.  Moseley,  64  Mo,  507;  Norton  v. 
Meader,  8  Saw.  603;  Hardy  v.  Harbin,  4  Saw.  536;  Helms  v.  Chad- 
bourne,  45  Wis.  60,  73;  Hoppin  v.  Doty,  25  Wis.  573,  591;  Hoxie  v.  Price, 
31  Wis.  82;  Gilbert  v.  Jess,  31  Wis,  110;  Fallass  v.  Pierce,  30  Wis,  443; 
Brinkman  v.  Jones,  44  Wis.  498,  519;  Ely  v.  Wilcox,  20  Wis,  523;  91 
Am,  Dec.  436;  Willis  v.  Gay,  48  Tex,  463;  26  Am,  Rep.  328;  Rodgers  v. 
Burchard,  34  Tex.  441;  7  Am.  Rep.  283;  Littleton  v.  Giddings,  47  Tex. 
109;  Allen  v.  Root,  39  Tex.  589:  Stafford  v.  Ballou,  17  Vt.  329;  Brackett 
V.  Wait,  0  Vt.  411;  Blaisdell  v.  Stevens,  16  Vt.  179;  Corliss  v.  Corliss,  8 
Vt,  373;  Cox  v.  Cox,  5  W.  Va.  335;  Martin  v.  Sale,  1  Bail.  Eq.  1,  24; 
Wallace  v.  Craps,  3  Strob.  266;  Cabiness  v.  Mahon,  2McCord,  273;  City 
Council  V.  Page,  1  Spear  Eq.  159,  212;  Vest  v.  Michie,  31  Gratt,  149;  31 
Am.  Rep.  722;  Mundy  v.  Vawter,  3  Gratt.  518;  Newman  v.  Chapman, 
2  Rand.  93;  14  Am.  Dec.  766;  Wood  v.  Krebbs,  30  Gratt.  708;  Long  v. 
AYeller'a  Executors,  29  Gratt.  347 ;  Doswell  v.  Buchanan's  Executors,  3 


§   7"25  THE    DOCTRINE    OF    NOTICE.  988 

injustice  of  allowing  a  subsequent  purchaser,  with  full 
knowledge  of  another's  rights,  to  gain  a  priority  over  him 
through  the  hitter's  negligence  to  record  his  deed,  induced 
the  courts,  at  an  early  day,  to  ingraft  the  equitable  rule 
upon  the  hiw  of  registration,  that  such  purchaser  should 
not  take  advantage  of  his  own  fraud.  He  was  viewed  as 
a  purchaser  in  bad  faith,  and  his  rights  accordingly  were 
considered  as  inferior  to  those  of  the  prior  purchaser.  It 
perhaps  would  be  useless  to  the  reader  to  enter  into  a 
long  history  of  the  growth  of  the  doctrine  of  notice,  and 
it  will  be  sufficient  to  say  that  it  generally  prevails.  But 
North  Carolina  and  Ohio  are  exceptions,  and,  in  those 
States,  the  general  rule  of  binding  a  subsequent  purchaser 
or  mortgagee  with  notice  does  not  apply. ^  If  a  person 
lias  a  bond  for  a  deed,  and  has  given  notes  for  the  pur- 
chase money,  a  purchaser  who  knows  that  one  of  the 
notes  is  unpaid,  although  he  may  take  a  deed  from  the 
original  vendor  as  well  as  from  the  vendee,  cannot  pro- 
tect himself  against  the  note  held  by  one  who  took  it  be- 
fore the  purchase.^ 

Leigh,  365;  23  Am.  Dec.  280;  McClure  v.  Thistle,  2  Gratt.  182;  Stannia 
V.  Nicholson,  2  Or.  332;  Carter  v.  City  of  Portland,  4  Or.  339,  330;  Colby 
V.  Kenniston,  4  N.  H.  262;  Warner  v.  Swett,  31  N.  H.  332;  Bell  v.  Twi- 
light, 22  N.  H.  500;  Rogers  v.  Jones,  8  N.  H.  264;  Hoit  v.  Russell,  56 
N.  H.  559;  Brown  v.  Manter,  22  N.  H.  468;  Patten  v.  Moore,  32  N.  H. 
382;  Harris  v.  Arnold,  1  R.  I.  125;  Tillinghast  v.  Champlin,  4  R.  I.  173, 
215;  67  Am.  Dec.  510;  McKenzie  v.  Penill,  15  Ohio  St.  162;  Morris  v. 
Daniels,  35  Ohio  St.  406;  Lahr's  Appeal,  90  Pa.  St.  507 ;  Smith's  Appeal, 
11  Wright,  128;  Speer  v.  Evans,  11  Wright,  141;  Britton's  Appeal,  9 
Wright,  172 ;  Butcher  v.  Yocum,  61  Pa.  St.  168 ;  100  Am.  Dec.  625 ;  Parke 
V.  Neeley,  90  Pa.  St.  52;  Nice's  Appeal,  54  Pa.  St.  200;  Maul  v.  Rider, 
59  Pa.  St.  167;  Cordova  v.  Hood,  17  Wall.  1 ;  Brush  v.  Ware,  15  Peters, 
93;  Holmes  v,  Stout,  2  Stockt.  Ch.  419;  Smith  v.  Vreeland,  16  N.  J.  Eq. 
199;  Van  Keuren  v.  Central  R.  R.,  38  N.  J.  L.  165;  Hoy  v.  Bramhall, 
19  N.  J.  Eq.  563;  97  Am.  Dec.  687;  Smallwood  v.  Lewin,  2  McCart.  60; 
Raritan  Water  Co.  v.  Veghte,  21  N.  J.  Eq.  463;  Van  Doren  v.  Robinson, 
16  N.  J.  Eq.  256. 

^  Fleming  J).  Burgin,  2  Ired.  Eq.  584;  Robinson  i;.  Willoughby,  70 
N.  C.  358;  Legget  v.  Bullock,  Busb.  283;  Bercaw  v.  Cockerill,  20  Ohio  St. 
163;  Stansell  v.  Roberts,  13  Ohio,  148;  42  Am.  Dec.  193;  Bloom  v.  Nog- 
gle,  4  Ohio  St.  45;  Mayham  v.  Coombs,  14  Ohio,  428. 

''  Lytie  V.  Turner,  12  Lea  (Tenn.),  641. 


989  THE    DOCTRINE    OF    NOTICE.  §§  726,727 

§  726.  Forged  deeds. — As  forged  deeds  cannot  affect 
the  title  to  land,  and,  therefore,  are  not  entitled  to  record, 
the  provision  of  the  statute  that  deeds  affecting  the  title 
to  land  shall  be  void  as  against  subsequent  purchasers 
and  creditoi-s  without  notice,  if  not  recorded  has  no  ap- 
plication to  deeds  which  are  forged.^  Where  a  person 
signs  a  deed  under  the  belief  that  he  is  signing  a  dupli- 
cate copy  of  a  lease,  never  intending  to  sign  a  deed,  the 
deed  is  a  forgery,  and  no  title  passes  thereby.^  The  fact 
that  a  deed  has  been  placed  on  record  does  not  afford 
notice  of  any  fraud  that  may  have  occurred  in  its  execu- 
tion.' 

§  727.  Notice  and  knowledge. — Though  sometimes 
the  terms  "  notice  "  and  "  knowledge"  are  used  indiscrimi- 
nately and  interchangeably,  there  is  a  manifest  distinc- 
tion between  them.  A  person  may  have  notice  of  a 
thing  without  having  any  actual  knowledge  of  it.  If  a 
person  has  sufficient  information  to  put  him  upon  inquiry, 
and  he  fails  to  prosecute  that  inquiry,  and  hence  does  not 
learn  the  true  state  of  the  title  through  his  own  negli- 
gence, or  a  desire  not  to  learn  it,  he  has  notice  of  all  he 
might  have  learned,  had  he  prosecuted  that  inquiry.  But 
he  has  not  knowledge  of  such  facts  because  he  does  not 
actually  knoiv  them,  but  the  law  presumes  that  he  does 
know  them  from  the  notice  he  has  received.  Knowledge 
means  the  actual  acquaintance  with  a  fact.  Notice  means 
information  about  a  fact,  which  information,  in  its  legal 
effect,  is  equivalent  to  knowledge  of  the  fact,  and  to  which 
the  law  attaches  the  same  consequences  as  it  would  to 
knowledge.  Notice  has  been  defined  as  "  Information 
given  of  some  act  done,  or  the  interpellation  by  which 
some  act  is  required  to  be  done."  *     Mr.  Pomeroy  suggests 

»  Pry  V.  Pry,  109  111.  466. 

*  McGinn  v.  Tobcy,  62  Mich.  252;  4  Am.  St.  Rep.  848. 

»  Martin  v.  Smith,  1  Dill.  98;  4  Nat.  Bank  KeK-  287;  Godbold  v.  Lam- 
bert, 8  Rich.  Eq.  155;  70  Am.  Dec.  192.  See,  also,  as  to  the  effect  of 
forged  deeds,  §  240,  ante,  and  Haight  v.  Vallet,  89  Cal.  245;  23  Am.  St. 
Rep.  465;  .Aleley  v.  Collins,  41  Cal.  663;  10  Am.  Rep.  279. 

*  Bouv.  Law  Diet.,  tit.  Notice. 


§728 


THE    DOCTRINE    OF   NOTICE. 


990 


as  an  acceptable  definition,  "Information  concerning  a 
fact  actually  communicated  to  a  party  by  an  authorized 
person,  or  actually  derived  by  him  from  a  proper  source, 
or  else  presumed  by  law  to  have  been  acquired  by  him, 
which  information  is  regarded  as  equivalent  in  its  legal 
effects  to  full  knowledge  of  the  fact,  and  to  which  the 
law  attributes  the  same  consequences  as  would  be  imputed 
to  knowledge,"  and  adds:  "It  should  be  most  carefully 
observed  that  the  notice  thus  defined  is  not  knowledge, 
nor  does  it  assume  that  knowledge  necessarily  results. 
On  the  other  hand,  the  information  which  constitutes  the 
notice  may  be  so  full  and  minute  as  to  produce  complete 
knowledge."  ^ 

§  728.'  Kinds  of  notice. — It  is  difiicult  to  divide  notice 
into  classifications  to  which  objections  cannot  be  found. 
Notice,  however,  may  be  classified  as  being  of  three  kinds, 
actual,  implied,  and  constructive.  Under  this  classifica- 
tion actual  notice  signifies  personal  knowledge.^  Implied 
notice  is  such  as  the  law  implies  from  the  relations  exist- 
ing between  the  parties,  as  principal  and  agent,  where 
notice  to  the  principal  is  implied  from  notice  to  his 
ageut.^  Constructive  notice  is  that  which  the  law  at- 
tributes to  a  person  of  things  which  he  knows,  or  ought 
to  know,  or  which,  by  using  ordinary  diligence,  he  might 
know.* 


1  2  Pomeroy's  Eq.  Jiir.,  §  594. 

«  Story's  Eq.  Jur.,  §  399 ;  Rogers  v.  Jones,  8  N.  H.  264;  Lamb  v.  Pierce, 
113  Mass.  72;  Baltimore  v.  Williams,  6  Md.  235;  Williamson  v.  Brown, 
15  N.  Y.  354 ;  Crassen  v.  Swoveland,  22  Ind.  427.  And  see,  also.  Smith 
V.  Smith,  2  Oromp.  &  M.  231 ;  Michigan  Mut.  L.  Ins.  Co.  v.  Oonant,  40 
Mich.  530;  North  Brit.  Ins.  Co.  v.  Hallett,  7  Jur.,  N.  S.,  1263;  Vest «;. 
Michie,  31  Gratt.  149 ;  31  Am.  Rep.  722. 

3  See  Josepthal  v.  Heyman,  2  Abb.  N.  0.  22;  Hovey  v.  Blanchard,  13 
N.  H.  145 ;  Fuller  v.  Bennett,  2  Hare,  394 ;  Walker  v.  Schreiber,  47  Iowa, 
529;  Williamson  «.  Brown,  15  N.  Y.  354;  Bank  of  United  States  v.  Davis, 
2  Hill,  451. 

*  See  Weilder  i;.  Farmers'  Bank  of  Lancaster,  11  Serg.  &  R.134;  Hew- 
itt V.  Loosemore,  9  Hare,  449 ;  Plumb  v.  Fluitt,  2  Anstr.  432 ;  Kennedy  v. 
Green,  3  .Mylne  &  K.  699 ;  Griffith  v.  Griffith,  Hoff.  Ch.  153. 


991  THE    DOCTRINE    OF    NOTICE.  §  729 

§  729,  Rumors. — Rumors  of  a  vague  and  uncertain 
character  not  emanating  from  some  person  interested  in 
the  property  will  not  affect  a  purchaser  with  notice  of 
conflicting  claims  to  the  land.^  "The  general  doctrine  is, 
that  whatever  puts  a  party  on  inquiry,  amounts,  in  judg- 
ment of  law,  to  notice,  provided  the  inquiry  becomes  a 
duty,  as  in  case  of  purchasers  and  creditors,  and  would 
lead  to  the  knowledge  of  the  requisite  fact  by  the  exercise 
of  ordinary  diligence  and  understanding.  Notice  of  a 
deed  is  notice  of  its  contents;  and  notice  to  an  agent  is 
notice  to  his  principal.  But  notice  of  a  rumor  of  a  con- 
veyance or  encumbrance  seems  not  to  be  considered  as 
either  actual  or  implied  notice.  Indeed,  to  set  on  foot  an 
inquiry  into  the  foundation  of  mere  rumors  would,  in 
most  cases,  be  a  vain  and  impracticable  pursuit.  Lex 
neminem  cogit  ad  vana  sen  impossibiliaJ'  ^  The  fact  that  a 
purchaser  applies  to  a  stranger  for  information  as  to  the 
value  of  the  land,  and  the  latter,  in  the  course  of  conver- 
sation which  resulted  from  the  inquiries  made  relative  to 
the  expediency  of  making  the  purchase  at  the  price 
named,  informs  the  purchaser  that  he  does  not  know  that 
there  is  any  equitable  title  to  the  land,  but  heard  a  person 
say  that  he  intended  to  prosecute  a  claim  further,  and 
thought  he  should  get  the  land,  is  not  sufficient  to  charge 
the  purchaser  with  notice.  This  information  is  nothing 
but  mere  rumor.^  The  notice  must  be  so  clear  that  the 
purchaser  cannot  take  and  hold  the  property  without 
fraud.* 

^  Hall  V.  Livingston,  3  Del.  Ch.  348;  Butler  v.  Stevens,  26  Me.  484; 
JoUand  v.  Stainbridge,  3  Ves,  478;  Hottenstein  v.  Lerch,  104  Pa.  St.  454; 
Parkhurst  v.  Hosford  (U.  S.  Cir.  Ct.  Or,),  4  West  C.  Rep.  311 ;  Jacques 
V.  Weeks,  7  Watts,  261;  Woodworth  v.  Paige,  5  Ohio  St.  70;  Shepard  v. 
Shepard,  36  Mich.  173;  Wilson  v.  McCullough,  23  Pa.  St.  440;  62  Am. 
Dec.  347;  Doyle  v.  Teas,  4  Scam.  202;  Lamont  v.  Stimson,  5  Wis.  443. 
'  '  Jacques  v.  Weeks,  7  Watts,  261,  267,  per  Sergeant,  J. 

*  Lamont  v.  Stimson,  5  Wis.  443. 

*  Hall  V.  Livingston,  3  Del.  Ch.  348.  In  this  case,  where  a  grantee 
held  under  an  absolute  deed,  it  was  held  that  to  affect  a  bona  fide  pur- 
chaser from  him  with  knowledge  of  a  secret  trust,  that  it  requires  a 
more  definite  notice  than  a  remark  by  a  party  in  interest  "he  imderstood 


§   730  THE    DOCTRINE    OF    NOTICE.  992 

§   7150.      Same   sulycct   coutiimed  —  Illustrations.  —  A 

purchaser  is  not  charged  with  notice  of  the  existence  of 
an  adverse  unrecorded  deed  to  a  piece  of  land  by  the  mere 
fact  that  he,  sometime  before  his  purchase,  had  an  inter- 
view with  his  grantor,  who  told  him  that  he  was  not  able 
at  that  time  to  make  a  good  title,  but  in  a  brief  time  would 
be.^  "  While  it  is  difficult  to  lay  down  a  general  rule  as 
to  what  facts  would,  in  every  case,  be  sufficient  to  charge 
a  party  with  notice  or  put  him  upon  inquiry,  yet  it  is  safe 
to  say,  that  the  information  received  ought  to  be  of  that 
character  that  a  prudent  person,  by  the  exercise  of  rea- 
sonable and  ordinary  diligence,  could,  upon  inquiry  and 
investigation,  arrive  at  the  fact  that  a  prior  conveyance 
had  been  made,"  ^  Speaking  of  the  statute  of  Pennsyl- 
vania, Sharswood,  J.,  says:  "We  are  bound  to  apply  to 
the  interpretatiou  of  this  statute  that  principle  in  regard 
to  constructive  notice  which  has  been  so  long  and  well 
settled — that  whatever  puts  a  party  on  inquiry  amounts 
in  judgment  of  law  to  notice,  provided  the  inquiry  be- 
comes a  duty,  as  in  case  of  purchasers  and  creditors,  and 
would  lead  to  the  knowledge  of  the  requisite  fact  by  the 
exercise  of  ordinary  diligence  and  understanding.  Even 
a  general  rumor  of  a  conveyance  would  not  have  been 
enough  to  have  made  it  the  duty  of  the  plaintiff  to  search 
the  record.  Notice  of  such  a  rumor  is  not  considered  as 
either  actual  or  implied  notice.  Indeed,  to  set  on  foot  an 
inquiry  into  the  foundation  of  mere  rumors,  would  in 
most  cases  be  a  vain  and  impracticable  pursuit.  There 
must  be  some  act,  some  declaration  from  an  authentic 
source — which  a  person  would  be  careless  if  he  disre- 
garded— which  is  necessary  to  put  a  party  on  inquiry,  and 

the  grantee  had  taken  the  land  for  seven  years  to  pay  off  the  grantor's 
debts,"  and  a  question  "if  he  knew  whose  land  he  was  trading  for."  See, 
also,  Shepard  v.  Shepard,  36  Mich.  173;  Wailes  v.  Cooper,  24  Miss.  208; 
Hawley  v.  Bullock,  29  Tex.  222;  Martel  v.  Somers,  26  Tex.  551;  Weth- 
ered  v.  Boon,  17  Tex.  143;  Bugbee's  Appeal,  110  Pa.  St.  331;  Lambert  w. 
Kewman,  56  Ala.  623;  Uatteree  v.  Conley,  74  Ga.  153. 

^  The  City  of  Chicago  v.  Witt,  75  111.  211. 

'  The  City  of  Chicago  v.  Witt,  supra,  per  Mr.  Justice  Craig, 


993  THE    DOCTRINE    OF    NOTICE.  §   731 

call  for  the  exercise  of  reasonable  diligence."^  When  an 
absolute  deed  contains  a  recital  that  the  purchase  money 
has  been  paid,  the  grantor,  when  seeking  to  enforce  as 
against  a  sub-purchaser  for  a  valuable  consideration,  a 
lien  on  the  land  for  the  unpaid  purchase  money,  has  the 
burden  of  proving  that  such  sub-purchaser  had  notice. 
And  the  positive  testimony  of  the  sub-purchaser  himself 
denying  notice,  cannot  be  overcome  by  proof  of  conver- 
sations or  declarations,  repeated  after  an  interval  of  four- 
teen or  fifteen  years,  and  not  appearing  to  have  been 
connected  with  any  circumstances  apt  to  impress  them 
on  the  memory.'^ 

§  731.  Partnership  property.  — If,  under  separate 
deeds  of  different  dates  and  from  different  grantors,  two 
persons  hold  undivided  interests  in  the  same  piece  of 
land,  a  party  who  deals  in  good  faith  with  one  of  them 
with  respect  to  his  interest,  is  not  charged  with  notice  of 
the  character  of  the  property  as  partnership  property 
from  the  knowledge  merely  that  the  owners  are  partners, 
and  use  the  premises  for  the  purposes  of  the  partnership, 
where  the  records  contain  nothing  indicating  a  partner- 
ship holding.  "The  record  ought  generally  to  be  the 
guide  on  which  parties  may  safely  rely  in  dealing  with 
the  titles  which  appear  there,"  said  Mr.  Chief  Justice 
Cooley,  "and  they  should  not  be  held  chargeable  with 
notice  of  equities  controlling  the  title  on  facts  which  are 
ambiguous.  Real  estate  held  by  partners  may  or  may 
not  be  partnership  property,  but  usually  it  is  not  so  un- 
less partnership  assets  have  been  used  to  purchase  it,  or 
unless  it  was  put  in  originally  as  a  part  of  the  joint  estate. 

1  Maul  V.  Rider,  59  Pa.  St.  167,  171. 

*  Lambert  v.  Newman,  56  Ala.  623.  See,  also,  as  to  the  insufficiency 
of  mere  rumor  to  charge  a  purchaser  with  notice,  Loughridge  v.  Bow- 
land,  52  Miss.  546;  Miller  v.  Cresson,  5  Watts  &  S.  284;  Butler  v.  Ste- 
vens, 26  Me.  484;  Parker  v.  Foy,  43  Miss.  260;  55  Am.  Rep.  484;  Wailea 
V.  Cooper,  24  Miss.  208;  Epley  v.  Witherow,  7  Watts,  163;  Hood  v. 
Fahnestock,  1  Barr.  470;  44  Am.  Dec.  147;  Wilson  v.  ISIcCullough,  23 
Pa.  St.  440;  62  Am.  Dec.  347;  Churcherw.  Guernsey,  3  Wright,  84. 
UEEU9,  Vol.  n.  —63 


§§  731  a,  732     the  doctrine  of  notice.  994 

But  generally  the  fact  that  two  or  more  persons  make 
use  of  propert}^  in  which  their  interests  are  apparently 
several,  for  partnership  purposes,  is  very  far  from  indi- 
cating an  understanding  that  others  would  be  bound  to 
take  notice.  The  several  interests  still  remain  several, 
and  each  may  deal  with  his  own  as  he  will,  and  any  pri- 
vate arrangement  that  would  change  this  could  not  bind 
third  parties  wdio  had  acted  in  ignorance  of  it."  ^  But 
where  the  lands  are  bought  by  the  firm,  and  title  taken  in 
the  firm  name,  a  purchaser  from  one  of  the  partners  is 
chargeable  with  notice  of  the  rights  of  the  others.^ 

§  731  a.  Information  imparted  to  purcliaser  that  title 
is  in  one  partner. — Likewise  if  the  title  stands  on  record 
in  the  names  of  two  persons,  and  the  purchaser  is  informed 
prior  to  the  completion  of  the  purchase  that  a  claim  is 
made  to  the  whole  of  the  land  by  one  of  such  persons  or 
his  grantee,  the  title  is  taken  subject  to  this  claim,  and 
may  be  defeated  by  showing  that  the  land  had  been  ac- 
quired by  the  owners  of  record  as  partners,  and  on  a  set- 
tlement of  their  partnership  affairs  it  had  been  awarded  to 
one  of  them.^  On  the  same  principle,  a  purchaser  of  land 
may  be  charged  with  notice  of  the  existence  of  a  vendor's 
lien  on  land  if  he  knows,  at  the  time  of  his  purchase,  that 
a  part  of  the  consideration  still  remained  unpaid.  Infor- 
mation of  this  character  will  impose  upon  him  the  duty 
of  inquiring,  and  he  will  be  charged,  in  accordance  with 
the  rules  of  notice,  with  what  he  might  with  reasonable 
diligence  have  ascertained.* 

§  732.     Information    must  he    from    credible  source. 

To  bind  a  subsequent  purchaser,  the  notice  must  come 
from  some  person  interested  in  the  property,®  or  from 

*  Eeynolds  v.  Ruckman,  35  Mich.  80,  81. 

*  Brewer  v.  Browne,  68  Ala.  210. 

*  Murrell  v.  Mandelbaum,  85  Tex.  22;  34  Am.  St.  Rep.  777. 

*  Woodall  V.  Kelly,  85  Ala.  368;  7  Am.  St.  Rep.  57. 

*  Van  Duyne  v.  Vreeland,  12  N.  J.  Eq.  142;  Peebles  v.  Reading,  8 
Serg.  &  R.  484 ;  Rogers  v.  Hoskins,  14  Ga.  166 ;  Lament  v.  Stimson,  5 


995  THE    DOCTRINE    OF    NOTICE.  §  733 

some  source  entitled  to  credit.^  Thus,  where  a  widow  had 
the  legal  title  to  a  piece  of  real  estate,  and  a  party  intend- 
ing to  purchase  was  informed  by  the  grandfather  of  the 
minor  children  of  the  widow  that  the  equitable  title  had 
been  in  the  deceased  husband,  and  was  then  in  his  heirs, 
it  was  held  that  the  grandfather  was  a  proper  person  to 
give  notice,  and  that  the  notice  so  communicated  would 
affect  such  party  if  he  subsequently  purchased.^  So  a 
person  is  bound  by  notice  derived  from  an  uncle  of  a 
female  in  a  state  of  idiocy.^  "It  is  exceedingly  difficult," 
says  Putman,  J.,  "if  not  impossible,  to  define  beforehand 
what  information  shall  or  shall  not  be  sufficient.  But  if 
it  were  given  by  those  persons  who  (as  in  the  case  at  bar) 
knew  the  party,  and  much  of  his  transactions,  and  who 
spake  not  vaguely,  especially  if  the  party  himself,  who 
was  to  be  affected  by  the  notice,  was  so  well  satisfied  of 
its  truth  as  again  and  again  to  state  or  acknowledge  the 
fact,  it  must  be  sufficient.  No  honest  man  after  such 
notice  could  undertake,  or,  if  he  did,  should  be  permitted, 
to  acquire  title  to  the  land,  which  from  information  given 
on  certain  knowledge  he  believed  had  been  conveyed. 
We  think  the  notice  should  be  so  express  and  satisfactory 
to  the  party,  as  that  it  would  be  a  fraud  in  him  subse- 
quently to  purchase,  attach,  or  levy  upon  the  land,  to  the 
prejudice  of  the  first  grantee."* 

§  733.  Inadequacy  of  price. — The  price  for  which  the 
land  may  be  offered  for  sale  may  be  so  small  that  a  pur- 

Wis.  443;  Barnhartr.  Greenshields,  9  Moore  P.  C.  0. 18,  36;  Natal  Land 
Co.  V.  Good,  2  Law  E.  P.  C.  121;  Parkhurst  v.  HosforJ,  21  Fed.  Rep. 
827. 

^  Curtis  V.  Mundy,  3  Mot.  405;  Mulliken  v.  Graliam,  72  Pa.  St.  484. 

*  Butcher  v.  Yocum,  61  I'a.  St.  168;   JOO  Am.  Dec.  62.3. 

*  Ripple  V.  Ripple,  1  Ruwle,  386.  Said  Gibbon,  C.  J :  "  Now,  although 
a  purchaser  may  disregard  rumora  set  afloat  by  those  who  have  no  right 
to  intermeddle,  he  is  bound  to  attend  to  the  admonitions  of  a  party  in 
interest.  Here  the  daugliters,  although  actually  charged  to  the  town- 
Bliip,  had  an  interest  of  their  own,  from  attending  to  which  they  were 
disabled  by  idiocy;  and  purely  one  so  near  in  blood  as  an  uncle  might 
lawfully  interpose  for  their  protection." 

*  In  Curtis  v.  Mundy,  3  Met.  405,  407. 


§  734  THE    DOCTRINE    OP    NOTICE.  99G 

chaser  must  know  that  it  is  iiitended  to  sacrifice  some- 
body's rights,  and  he  may  accordingly  be  held  to  be  put 
upon  the  strictest  inquiry.  "It  is  not  necessary,  in 
order  to  charge  a  purchaser  with  bad  faith,  that  he  should 
have  definite  knowledge  or  notice  of  the  exact  character 
and  condition  of  the  right  which  he  attempts  to  defeat. 
If  the  circumstances  are  such  as  to  inform  him  loudly 
that  some  wrong  is  about  to  be  perpetrated,  he  cannot 
blindly  shut  his  eyes,  and  then  come  into  court  in  the 
character  of  a  6o)ia  ^cZe  purchaser."^  The  circumstances 
that  one  knowing  that  a  parcel  of  land  was  worth  between 
two  thousand  and  three  thousand  dollars,  purchased  it 
for  one  hundred  dollars,  and  knowing  also  that  although 
the  title  of  his  grantor  was  acquired  several  years  pre- 
viously, the  original  owner  still  continued  to  reside  upon 
the  land,  are  sufficient  to  put  such  purchaser  upon  the 
strictest  inquiry  as  to  the  rights  of  other  parties.^  Still, 
as  it  is  unnecessary  to  set  out  the  full  price  paid  for  the 
land,  it  does  not  follow  because  a  price  less  than  the  actual 
value  of  the  land  is  stated  in  the  deed  as  the  considera- 
tion, that  this  is,  of  itself,  a  suspicious  circumstance  re- 
quiring a  purchaser  to  take  notice  of  it.* 

§   734.     Statement  from  holder  of  adverse  title. — if  a 

person  about  to  purchase  a  piece  of  property  from  one 
assuming  to  act  as  owner  is  informed  by  a  third  party 
that  the  latter  possesses,  or  claims  to  possess,  some  ad- 
verse title  or  interest  in  the  property,  this  statement  is 
sufficient  to  aff'ect  such  intending  purchaser  with  notice. 
Thus,  if  A  has  an  unrecorded  deed  for  certain  land,  and 
B  hears  A  say  that  he  has  title  to  the  land,  B  has  sufficient 
notice  of  A's  title  to  put  him  on  further  inquiry,  and,  if  B 
afterward  purchases  the  land  from  another  without  mak- 
ing such  inquiry,  he  is  held  to  have  purchased  with  no- 

^  Hoppin  V.  Doty,  25  Wis.  573,  591,  per  Paine,  J. ;  Peabody  v.  Finton, 
3  Barb.  Ch.  451 ;  Eck  v.  Hatcher,  58  Mo.  235.  See,  also,  Hoyt  v.  Hoyt, 
8  Bosw.  511;  Tillinghast  v.  Champlin,  4  R.  I.  173;  67  Am.  Dec.  510. 

=*  Hoppin  V.  Doty,  25  Wis.  573.  But  see  Beadles  v.  Miller,  9  Bush, 
405. 

»    Stewart's  Appeal,  98  Pa.  St.  377. 


997  THE    DOCTRINE    OF    NOTICE,  §  734 

tice  of  A's  title.^  If  there  is  an  equitable  encumbrance 
upon  a  piece  of  land,  and  the  owner  sells  it,  and  informs 
the  purchaser  that  no  such  encumbrance  exists,  yet,  if 
the  purchaser,  at  the  time  of  making  the  purchase,  had 
knowledge  of  the  facts  by  which  the  equitable  encum- 
brance was  created,  he  takes  the  land  subject  to  the 
charge,  notwithstanding  that  he  has  paid  all  that  the 
land  was  worth,  and  had  searched  the  record  title,  and 
found  it  clear,  and  took  his  deed  in  the  belief  that  in 
neither  law  nor  equity  could  such  an  encumbrance  be 
enforced.^  The  fact  that  a  party  has  notice  of  an  owner's 
intention  to  execute  a  deed  is  not  sufficient  to  show  that 
he  has  notice  of  the  contents  of  the  deed  as  executed.^ 
Land  was  owned  in  common  by  three  parties,  who  may 
be  designated  as  A,  B,  and  C.  A  portion  of  the  land  w^as 
charged  as  against  tliei^i  with  an  equitable  encumbrance, 
which  did  not  appear  of  record,  D  purchased  without 
notice,  in  good  faith,  and  for  full  value,  the  undivided 
interest  of  A.  Subsequently  B  conveyed  his  undivided 
interest  to  E,  who  purchased  for  full  value,  but  with 
notice  of  the  encumbrance.  An  amicable  and  equal  par- 
tition of  the  land  was  afterward  made  between  C,  D,  and 
E,  D  being  still  ignorant  of  the  encumbrance.  The  part 
assigned  to  E,  under  the  exchange  of  deeds,  included  the 
whole  of  the  portion  that  was  encumbered.  This  portion 
was  estimated  at  its  full  value,  and  no  allowance  was 
made  for  the  encumbrance.  A  bill  in  equity  was  brought 
against  E  for  the  purpose  of  establishing  the  encum- 
brance, and  it  was  held  that  he  could  not  avail  himself  of 
the  want  of  notice  on  the  part  of  D,  to  afford  protection 
to  the  title  to  the  part  which  he  then  owned  in  severalty.^ 

>  Bartlett  v.  Glasscock,  4  Mo.  62. 
»  Blatchley  v.  Osborn,  33  Conn.  226. 

•  Ponder  v.  Scott,  44  Ala.  241. 

*  Blatchley  v.  Osborn,  S3  Conn.  226.  See,  also,  Epley  v.  Witherow, 
7  Watts,  163;  Barnes  v.  McClinton,  3  Pen.  &  W.  67;  23  Am.  Dec.  62; 
Nelson  t>.  Sims,  23  Miss.  383;  57  Am.  Dec.  144;  Jacques  v.  Weeks,  7 
Watts,  261;  Ru'^sell  v.  Pctree,  10  Mon.  B.  184;  Hudson  v.  Warner,  2 
Har.  &  G.  415;  Price  v.  McDonald,  1  Md.  403;  54  Am.  Dec.  657. 


§§  735,  73G  THE    DOCTRINE    OF    NOTICE.  998 

§  735.  Information  given  by  recorder. — If  the  re- 
corder tells  a  person  who  is  about  to  purchase  property 
that  the  seller  has  already  given  a  deed  to  another  person 
■which  had  been  deposited  for  record,  but  had  been  with- 
drawn before  it  was  actually  recorded,  this  information  is 
sufficient  to  put  such  purchaser  upon  inquiry.  "The 
rules  in  respect  to  notice  to  purchasers,"  said  Rhodes,  J., 
"of  adverse  titles  or  claims,  other  than  such  as  is  im- 
parted by  the  records,  are  not  founded  upon  any  arbitrary 
provisions  of  law,  but  have  their  origin  in  the  consider- 
ations of  prudence  and  honesty  which  guide  men  in  their 
ordinary  business  transactions.  No  man,  on  being  told 
by  the  recorder  that  a  certain  deed  had  been  filed  in  his 
office,  and  that  it  had  been  withdrawn,  would  doubt  that 
the  deed  existed;  and  if  he  was  intending  to  purchase 
the  property,  common  prudence  would  dictate  to  him  the 
necessity  of  making  inquiry  of  the  grantee  for  the  deed* 
unless  he  was  incorrectly  advised  that  deeds  took  prece- 
dence solely  from  priority  of  record."^  A  purchaser  who 
has  knowledge  of  an  error  in  the  description  of  mort- 
gaged property,  or  is  able  from  his  knowledge  of  the 
property  to  interpret  the  record,  giving  it  the  meaning 
intended,  becomes  a  purchaser  with  notice.^ 

§  736.     Time  of   payment    of    consideration. — If    the 

notice  has  been  given  to  the  intending  purchaser  before 
he  has  paid  any  part  of  the  consideration,  there  is  no 
doubt  that  he  thus  becomes  a  purchaser  with  notice,  and 
if  he  sees  proper  to  pay  the  money,  he  acquires  a  title 
subject  to  the  rights  of  whose  existence  he  had  notice.' 

'  Lawton  v.  Gordon,  37  Oal.  202,  207. 

»  Carter  v.  Hawkins,  62  Tex.  393. 

•  Hardingham  v.  NichoUs,  3  Atk.  304  j  Kitteridge  v.  Chapman,  36 
Iowa,  348;  Price  v.  McDonald,  1  Md.  403;  54  Am.  Dec.  657;  Wood  v. 
Mann,  1  Sura.  506;  Baldwin  v.  Sager,  70  111.  503;  Maitland  v.  Wilson,  3 
Atk.  814;  English  v.  Waples,  13  Iowa,  57;  Penfield  v.  Dunbar,  64  Barb. 
239 ;  Flagg  v.  Mann,  2  Sum.  486 :  Palmer  v.  Williams,  24  Mich.  338.  See 
Farmers'  Loan  Co.  v.  Maltby,  8  Paige,  361 ;  Blanchard  v.  Tyler,  12  Mich. 
339;  86  Am.  Dec.  57;  Murray  v.  Ballou,  1  Johns.  Ch.  566;  Keys  v. 
Test,   33  111.316;  Bennett  v.  Titherington,  6  Bush,    192;  Haughwout 


999  THE    DOCTRINE    OF    NOTICE.  §  736 

Bat  where  a  part  payment  has  been  made  at  the  time  of 
receiving  notice,  there  is  a  difference  of  opinion.  It  is 
held  in  England  that  if  notice  is  given  before  the  whole 
of  the  consideration  has  been  paid,  the  party  is  charged 
with  notice.^  In  this  country  the  authorities  are  divided. 
On  the  one  hand,  it  is  held  that  where  j)ayment  has  been 
made,  but  notice  has  been  given  before  the  delivery  of 
the  deed,  the  purchaser  is  affected  with  notice.^  But  on 
the  other  hand,  it  is  held  that  the  payment  of  the  pur- 
chase money  before  the  receipt  of  notice  is  sufficient  to 
allow  the  purchaser  to  claim  protection  as  a  bona  fide  pur- 
chaser.^ If  a  person  taking  a  mortgage  had  a  previous 
notice  of  a  pre-existing  lien  upon  the  land,  the  fact  that 
he  has  forgotten  it  at  the  time  he  took  the  mortgage  will 


V.  Murphy,  21  N.  J.  Eq.  (6  Green,  0.  E.)  118 ;  Wells  v.  Morrow,  38  Ala. 
125:  More  v.  Mahow,  1  Cas.  Oh.  34;  Story  v.  Lord  Windsor,  2  Atk.  630; 
Tillesiey  v.  Lodge,  8  Smale  &  G.  543;  Moshier  v.  Knox  College,  32  111. 
155;  Boone  t).  Chiles,  10  Peters,  209;  Wormley  v.  Wormley,  8  Wheat. 
42'.* ;  Jones  v.  Stanley,  2  Eq.  Oas.  Abr.  685 ;  Union  Canal  Co.  v.  Young, 
1  Whart.  410;  30  Am.  Dec.  212;  Wilson  v.  Hunter,  30  Ind,  466;  Fatten 
V.  Moore,  32  N.  H.  382;  Collinson  v.  Lister,  7  DeGex,  M.  &  G.  634;  20 
Beav.  356;  Tourville  v.  Naish,  3  P.  Wms.  306;  Rayne  v.  Baker,  1  Giff. 
241;  Brown  v.  Welch,  18  111.  343;  68  Am.  Dec.  549;  Wigg  v.  Wigg,  1 
Atk.  382;  Schultze  v.  Houfes,  96  111.  335. 

^  Tildesly  v.  Lodge,  3  Sniale  &  G.  543;  Jones  v.  Stanley,  2  Eq.  Cas. 
Abr.  685;  Siiarpe  v.  Foy,  Law  R.  4  Ch.  35;  Rayne  v.  Baker,  1  Giff.  241; 
Story  V.  Lord  Windsor,  2  Atk.  630 ;  More  v.  Mahow,  1  Cas.  Ch.  34 ;  Wigg 
V.  Wigg,  1  Atk.  382;  Tourville  v.  Naish,  3  P.  Wms.  307;  Cotlinson  v. 
Lister,  7  De  Gex,  M.  &  G.  684;  20  Beav.  356. 

*  Osborn  v.  Carr,  12  Conn.  195;  Doswell  v.  Buchanan,  3  Leigh,  394; 
23  Am.  Dec.  280;  Fash  v.  Ravesies,  32  Ala.  451;  Duncan  v.  Johnson,  13 
Ark.  190;  Blight  v.  Banks,  6  Mon.  192;  17  Am.  Dec.  136;  Peabody  v. 
Fenton,  3  Barb.  Ch.  451;  Simms  v.  Richardson,  2  Litt.  274;  Grimstone 
V.  Carter,  3  Paige,  421;  24  Am.  Dec.  230;  Blair  v.  Owles,  1  Munf.  38; 
.\Ioore  V.  Clay,  7  Ala.  742;  Wells  t;.  Morrow,  38  Ala.  125;  Bennetts. 
litliL-rington,  6  Bush,  192;  Pillow  v.  Shannon,  3  Yerg.  508;  Halstead  v. 
Bank  of  Kentucky,  4  Marsh.  J.  J.  554. 

*  Leach  v.  An.sbacher,  55  Pa.  St.  85;  Carroll  v.  Johnson,  2  Jones  Eq. 
120 ;  Gibler  v.  Trimble,  14  Ohio,  323 ;  Baggarly  v.  Gaither,  2  Jones  Eq.  ^0 ; 
Mut.  etc.  Society  v.  Stone,  3  Leigh,  218.  See  on  the  general  subject, 
Baldwin  v.  Sager,  70  111.  503;  Wormley  v.  Wormley,  8  Wheat.  421; 
Wheaton  v.  Dyer,  15  Conn.  307;  Zollman  v.  Moore,  21  Gratt.  31.'!;  Phelpa 
V.  Morrison,  24  IS.  J.  Eq.  195.     See  Morris  v.  Meek,  57  Tex.  385. 


§  737  THE    DOCTRINE    OF    NOTICE.  iOOO 

not  be  sufficient  to  free  him  from  the  consequences  of 
such  notice.^ 

§   737.     Intimate  relationsliip  or  business  connections. 

As  a  question  of  evi'Jence  whether  a  person  had  notice, 
much  attention  has  sometimes  been  paid  to  the  circum- 
stance that  there  was  a  close  rehationship  or  personal 
intimacy  between  the  grantee  and  grantor.  Thus,  a  per- 
son appointed  an  agent  to  purchase  a  piece  of  land,  and 
gave  him  some  money  to  pay  on  account.  The  agent's 
son  subsequently  bought  the  land  with  the  knowledge 
of  the  father,  and  received  a  deed  for  it.  Tlie  principal 
brought  an  action  in  ejectment  for  the  land  against 
the  father  and  the  son.  The  court  held  that  it  was  not 
error  to  charge  the  jury  that  the  knowledge  by  the  son 
of  the  trust  might  be  inferred  from  the  relation  of 
father  and  son  existing  between  the  defendants,  and  from 
their  transactions  as  to  tlie  contract  between  the  prin- 
cipal and  the  father,  and  the  other  circumstances  of 
the  case.^  It  is  unnecessary  to  say  that  a  bona  fide 
purchaser  for  value  of  the  real  estate  of  a  partnership,  the 
legal  title  to  which  is  vested  in  the  copartners,  or  in  one 
of  them  for  the  firm,  will,  if  he  possesses  no  notice  of  the 
equitable  rights  of  others  in  it  as  a  part  of  the  copartner- 
ship funds,  be  protected  upon  the  ground  of  his  own  equi- 
ties as  such  purchaser.  But  where  a  person  buys  the 
undivided  half  of  a  planing-mill  and  other  property  from  a 
surviving  partner  of  a  firm  of  housewrights,  knowing 
that  the  mill  was  built  with  money  belonging  to  the  co- 
partnership, and  knowing  that  the  dissolving  firm,  if  not 
insolvent,  was  greatly  in  debt,  and  that  the  surviving 
partner  had  paid  none  of  its   debts,  and  where  the  deed 

^  Hunt  V.  Clark's  Administrator,  6  Dana,  56. 

"  Trefts  V.  King,  18  Pa.  St.  157.  Said  Coulter,  J:  "The  judge  told 
the  jury  that  they  ought  to  consider  the  relation  of  the  parties  being 
father  and  son,  and  their  transactions  in  relation  to  the  contract,  and  all 
the  other  evidence  in  the  cause.  This  instruction  was  right.  In  regard 
to  such  transactions  it  is  impossible  to  shut  our  eyes  to  the  relations  of 
the  parties." 


XOOl  THE    DOCTRINE    OF    NOTICE.  §   738 

was  taken,  and  the  money  paid  secretly,  the  vendor  ab- 
sconding with  it  on  the  same  night,  the  purchaser,  not- 
withstanding that  no  proof  can  be  adduced  of  his  actual 
participation  in  the  acts  of  his  vendor,  may  be  held  to  be 
affected  by  these  circumstances  with  constructive  notice  of 
the  breach  of  trust  intended  by  the  partner  from  whom 
he  received  his  deed.^  A  person  took  a  deed  to  land  in 
his  own  name  alone,  but  purchased  it  with  money  belong- 
ing jointly  to  himself,  his  mother,  brother,  and  sister. 
To  one  of  his  individual  creditors  he  subsequently  made  an 
offer  to  pay  him  by  a  sale  or  lease  of  the  land,  or  to  se- 
cure him  by  a  mortgage  upon  it.  The  creditor  took  a 
mortgage,  and  said  afterward  to  a  third  person  that  he 
preferred  a  mortgage  for  the  reason  that  he  feared  that 
the  title  was  not  clear,  and  that  other  parties  might  claim 
some  right  to  the  land.  The  creditor  was  on  intimate 
terms  with  the  grantor,  and  his  mother,  brother,  and  sis- 
ter, and  there  was  nothing  to  show  that  any  other  person 
asserted  any  claim  to  the  premises.  The  court  held  that 
notice  on  the  part  of  the  creditor  of  the  rights  of  the 
mother,  sister,  and  brother  of  the  grantor,  at  the  time  he 
took  the  mortgage,  was  sufficiently  shown  by  these  and 
similar  facts,  and  that  his  mortgage  should  be  made  sub- 
ject to  their  equities.^  But  in  all  these  cases  the  fact  of 
relationship  or  intimacy  has  been  connected  with  others, 
from  all  of  which,  taken  together,  the  court  drew  the  in- 
ference of  notice.  Notice,  however,  would  not  reasonably 
be  inferred  from  the  existence  of  close  relationship  or  in- 
timate acquaintance  unconnected  with  other  circum- 
stances.^ 

§  738.  Notice  of  a  trust. — If  a  person  has  notice  of 
a  trust  and  purchases  the  trust  property  from  the  trustee, 
he  will  hold   the  property  thus  acquired  subject  to  the 

>  Tillinphast  v.  Champlin,  4  R.  I.  173;  67  Am.  Dec.  510. 

*  Spurlock  V.  Sullivan,  3*)  Tex.  511.  See,  also,  Hoxie  v,  Carr,  1  Sum. 
173,  192;  FlagK  v.  Mann,  2  Sum.  487. 

•  Dubois  V.  Barker,  4  Hun,  80,86. 


§  738  THE    DOCTRINE    OF    NOTICE.  1002 

same  trust  as  that  under  which  the  trustee  held  it/  But 
if  the  purchaser  has  neither  actual  nor  constructive  no- 
tice of  the  trust,  and  acquires  the  title  for  a  valuable  con- 
sideration, he  will  hold  the  property  freed  from  the  trust.^ 
Where  the  purchaser  obtains  his   deed  with  notice  of  the 

*  Le  Neve  v.  Le  Neve,  Amb.  436 ;  Liggett  v.  "Wall,  2  Marsh.  A.  K. 
149;  Bailey  y.  Wilson,  1  Dev.  &  B.  Eq.  182;  Peebles  v.  Reading,  8  Serg. 
&  R.  495;  West  v.  Fitz,  109  111.  425;  Murray  v.  Ballou,  1  Johns.  Oh.  566; 
Wright  V.  Dame,  22  Pick.  55;  Jones  v.  Shaddock,  41  Ala.  362;  "Wilkins 
V.  Anderson,  1  Jones,  399;  James  v.  Cowing,  17  Hun,  256;  Reed  v. 
Dickey,  2  Watts,  459 ;  Smith  v.  Walter,  49  Mo.  250 ;  Clarke  v.  Hacker- 
thorn,  3  Yeates,  269;  Ryan  v.  Doyle,  31  Iowa,  53;  Caldwell  v.  Carring- 
ton,  9  Peters,  86;  Wormley  v.  Wormley,  8  Wheat.  421;  Pugh  v.  Bell,  1 
Marsh.  J.  J.  403;  Cary  v.  Eyre,  1  De  Gex,  J.  &  S.  149;  Case  v.  James, 
29  Beav.  512;  Potter  v.  Sanders,  6  Hare,  1 ;  Kennedy  v.  Daly,  1  Schoales 
&  L.  355;  Crofton  v.  Ormsby,  2  Schoales  &  L.  583;  Wigg  v.  Wigg,  1  Atk. 
383 ;  Adair  v.  Shaw,  1  Schoales  &  L.  262 ;  Mackreth  v.  Symmons,  19  Ves. 
367;  Benzien  v.  Lenoir,  1  Car.  Law  Rep.  504;  Taylor  v.  Stibbert,  2  Ves. 
Jr.  437 ;  Ferras  v.  Cherry,  2  Vern.  384;  Daniels  v.  Davidson,  16  Ves.  Sr. 
249;  Brooke  v.  Bulkely,  2  Ves.  Sr.  498;  Grant  v.  Mills,  2  Ves.  &  B.  306; 
Mead  v.  Orrery,  3  Atk.  238;  Birch  v.  EUames,  2  Anstr.  427;  Saunders 
V.  Behew,  2  Vern.  371;  Dunbar  v.  Tredennick,  2  Ball  &  B.  319;  Jen- 
nings V.  Moore,  2  Vern.  609;  2  Brown  Pari.  C.  278;  Mansell  v.  Mansell, 
2  P.  Wms.  681 ;  Phayre  v.  Peree,  3  Dow,  129;  Oliver  v.  Piatt,  3  How.  338; 
Massey  v.  Mcllwaine,  2  Hill  Eq.  426. 

*  See  for  various  instances.  Trull  v.  Bigelow,  16  Mass.  406;  8  Am. 
Dec.  144;  Dana  v.  Newhall,  13  Mass.  498;  Connecticut  v.  Bradish,  14 
Mass.  296;  Boynton  v.  Rees,  8  Pick.  329;  19  Am.  Dec.  326;  Learned  v. 
Tritch,  6  Colo.  432;  Colesbury  v.  Bart,  58  Ala.  573;  Brackett  v.  Miller, 
4  Watts  &  S.  102;  Lacy  v.  Wilson,  4  Munf.  413;  Dixon  v.  Caldwell,  15 
Ohio  St.  412;  86  Am.  Dec.  487;  High  v.  Batte,  10  Yerg.  335;  Blight  v. 
Banks,  6  Mon.  198;  17  Am,  Dec.  136;  Alexander  v.  Pendleton,  8  Cranch, 
462;  Dillaye  v.  Commercial  Bank,  51  N.  Y.  345;  Hamilton  v.  Mound 
City  Mutual  L.  Ins.  Co.,  3  Tenn.  Ch.  124;  Tompkins  v.  Powell,  6  Leigh, 
576;  Owings  «.  Mason,  2  Marsh.  A.  K.  380;  Goodtitle  v.  Cummings,  8 
Blackf.  179;  Heilner  v.  Imbrie,  6  Serg.  &  R.  401;  Brown  v.  Budd,  2 
Cart.  442;  Bumpus  v.  Platner,  1  Johns.  Ch.  213;  Curtis  v.  Lanier,  6 
Munf.  42;  Griffith  v,  Griffith,  9  Paige,  315;  Maywood  v.  Lubcock,  1  Bail. 
Eq.  382;  Fletcher  i;.  Peck,  6  Cranch,  36;  Boone  ?;.  Chiles,  10  Peters,  177; 
Varick  v.  Briggs,  6  Paige,  325;  Siddon  v.  Charnells,  Bunb.  298;  AVil- 
loughby  V.  Willoughby,  1  Term  Rep.  765;  Charlton  v.  Low,  3  P.  Wims. 
326;  Harcourtw.  Knowell,  2  Vern.  159;  Goleborn  v.  Alcock,  2  Sim. 
552;  Blake  v.  Hungerford,  Prec.  Ch.  158;  Shine  v.  Gough,  1  Ball  &  B. 
536;  Jerrard  t;.  Saunders,  2  Ves.  Jr.  457;  Sanders  y.Deligne,  Freem.  123; 
Jones  V.  Powles,  3  Mylne  &  K.  581 ;  Walwyn  v.  Lee,  9  Ves.  24 ;  Hughson 
V.  Maiideville,  4  Desaus.  Eq.  87 ;  Watson  v.  Le  Roy,  6  Barb.  485 ;  De- 
marest  v.  Wynkoop,  3  Johns.  Ch.  147;  8  Am.  Dec.  467;  Howell  v.  Ash- 


1003  THE  DOCTRINE  OF  NOTICE.  §  738 

trust,  he  cannot,  by  buying  in  other  interests,  defeat  the  in- 
terest of  the  cestui  que  trust}  Notice  of  the  trust  to  the 
agent  while  engaged  in  the  transaction  is  notice  to  the 
principal.^  A  person  who  secures  a  deed  by  fraud  becomes 
a  trustee,  and  if  another  take  a  deed  from  him  with  full 
knowledge  of  the  fraud,  such  second  grantee  will  hold  the 
property  as  a  trustee.^  A  deed  made  on  a  good,  as  distin- 
guished from  a  valuable,  consideration,  will  not  be  suffi- 
cient to  bar  the  title  of  the  cestui  que  trust.*  To  enable 
the  purchaser  to  claim  protection  as  a  bona  fide  purchaser 
without  notice  of  the  trust,  the  money  must  have  been 
paid  before  he  received  notice.^     Where  a  deed  made  to  a 

more,  1  Stockt.  Ch.  82;  57  Am.  Dec.  371 ;  Mundine  v.  Pitts,  14  Ala.  84; 
Woodruff  V.  Cook,  1  Gill  &  J.  270;  Whittick  v.  Kane,  1  Paige,  202;  Hal- 
stead  V.  Bank  of  Kentucky,  4  Marsh.  J.  J.  554 ;  Fletcher  v.  Peck,  6 
Cranch,  36;  Vattier  v.  Hinde,  7  Peters,  252;  Holmes  t;.  Stout,  3  Green 
Ch.  492. 

1  Brooke  v.  Bulkely,  2  Ves.  Sr.  498 ;  Kennedy  v.  Daly,  1  Schoales  & 
L.  37 ;  Maloney  v.  Kernan,  2  Dru.  &  Walsh,  31 ;  Bovey  v.  Smith,  1  Vern. 
145. 

2  Hood  V.  Fahnestock,  8  Watts,  489;  34  Am.  Dec.  489;  Bank  of  United 
States  V.  Davis,  2  Hill,  451 ;  Aster  v.  Wells,  4  Wheat.  466 ;  Jackson  v.  Wins- 
low,  9  Cowen,  13 ;  Hovey  v.  Blanchard,  13  N,  H.  145 ;  Jackson  v.  Leak,  19 
Wend.  339;  Winchester  v.  Baltimore  E.  R.  Co.,  4  Md.  231 ;  Griffith  v. 
Griffith,  9  Paige,  315;  Jackson  v.  Sharp,  9  Johns.  163;  6  Am.  Dec. 
267 ;  Barnes  v.  McChristie,  3  Pa.  67 ;  Bracken  v.  Miller,  4  Watts  &  S.  108 ; 
Fuller  V.  Bennett,  2  Hare,  394;  Worsley  v.  Scarborough,  3  Atk.  392; 
Preston  v.  Tubbin,  1  Vern.  286;  Tunstall  v.  Trappes,  3  Sim.  301;  Espin 
V.  Pemberton,  3  De  Gex  &  J.  547 ;  Maddox  v.  Maddox,  1  Ves.  61 ;  Ashley 
V.  Baillie,  2  Ves.  Sr.  368;  Tylee  v.  Webb,  6  Beav.  552;  Finch  v.  Shaw, 
19  Beav.  500 ;  Warwick  v.  Warwick,  3  Atk.  291 ;  Mountford  v.  Scott,  3 
Madd.  34;  Howard  Ins.  Co.  v.  Halsey,  4  Seld.  271;  59  Am.  Dec.  478; 
Blair  r.  Owles,  1  Munf.  38;  Westerwelt  v.  Hoff,  2  Sand.  98;  Newstead 
V.  Searles,  1  Atk.  265;  Brotherton  v.  Hiett,  2  Vern.  574. 

«  Smith  V.  Bowen,  35  N.  Y.  83 ;  Sadler's  Appeal,  87  Pa.  St.  154 ;  Lyons 
V.  Bodenhamer,  7  Kan.  455;  Saunders  v.  Dehew,  2  Vern.  271;  Pye  v. 
George,  1  P.  Wins.  128. 

*  Boone  v.  Baines,  23  Miss.  136;  Patten  v.  Moore,  32  N.  H.  382;  Ev- 
erts ?;.  Agnes,  4  Wis.  343;  65  Am.  Dec.  314;  Swan  v.  Ligan,  1  McCord 
Ch.  232;  L'i)shaw  v.  Hargrove,  6  Smedes  &  M.  292;  Frost  v.  Beekman,  1 
JohnH.  Ch.  288. 

"  Warner  V.  Whittaker,  6  Mich.  133:  72  Am.  Dec.  65;  Dugan  v.  Vat- 
tier,  3  Blackf.  245;  25  Am.  Dec.  105;  Christie  v.  Bishop,  1  Barb.  Ch.  105; 
Blanchard  V.Tyler,  12  Mich.  339;  86  Am.  Dec.  57;  Dixon  v.  Hill,  5  Mich. 
404;  Thomas  v.  Stone,  Walk.  Ch.  117;  Stone  v.  Welling,  14  Mich.  514; 


§  738  a  THE    DOCTRINE    OF    NOTICE.  1004 

person  as  a  truslce  for  a  town  did  not  disclose  the  exist- 
ence of  the  trust,  and  the  trustee  bargained  to  sell  the 
land  to  one  who  entered  into  possession  and  erected  im- 
provements, but  received  no  deed,  and  was  unaware  of  the 
equities,  of  the  town,  it  was  held,  in  a  suit  in  equity- 
brought  by  the  town  to  compel  the  execution  of  a  deed* 
that,  on  the  ground  where  the  equities  are  equal, -posses- 
sion prevails,  the  decree  should  be  for  the  amount  of  the 
purchase  money  paid  for  the  laud,  and  not  for  a  convey- 
ance.* 

§   738  a.     Desig-nation  of  grantee  as  **  trustee." — The 

general  rule  that  pervades  the  whole  doctrine  of  notice  is 
that,  whenever  sufficient  facts  exist  to  put  a  person  of 
common  prudence  upon  inquiry,  he  is  charged  with  con- 
structive notice  of  everything  to  which  that  inquiry,  if 
prosecuted  wdth  proper  diligence,  would  have  led.  There- 
fore, if  a  deed  is  made  to  a  person  designated  "trustee," 
although  the  nature  of  the  trust,  or  the  beneficiary  under 
it,  is  not  disclosed,  still  a  purchaser  is  obligated  to  inquire 
as  to  the  nature  and  limitations  of  the  trust.^     In  a  case 

Perkinson  v.  Hanna,  7  Blackf.  400;  Rhodes  v.  Green,  36  Ind.  10;  Lewis 
V.  Phillips,  17  Ind.  108;  79  Am.  Dec.  457;  Jackson  v.  Cadwell,  1  Cowen, 
622;  Heatley  «;.  Finster,  2  Johns.  Ch.  19;  High  v.  Batte,  10  Yerg.  555; 
Jewett  v.  Palmer,  7  Johns.  Ch.  65;  11  Am.  Dec.  401;  Patten  v.  Moore, 
32  N.  H.  382;  Hunter  v.  Simrall,  5  Litt.  62;  McBee  v.  Loftes,  1  Strob. 
Eq.  90;  Palmer  v.  Williams,  24  Mich.  333;  Story  v.  Winsor,  2  Atk.  630; 
Tourville  v.  Naish,  3  P.  Wms.  387;  Wigg  v.  Wigg,  1  Atk.  384. 

^  St.  Johnsbury?;.  Morrill,  55  Vt.l65.  See,  also,  Jeffersonville  etc.  R.  R. 
Co.  V.  Oyler,  60  fnd.  383;  Indiana  B.  &  W.  Ry.  Co.  v.  McBroom,  114 
Ind.  198;  15  N.  E.  Rep.  831;  Paul  v.  Connersville  etc.  R.  R.  Co.  51  Ind. 
527;  Chicago  etc.  R.  Co.  v.  Wright,  153  111.  307;  38  N.  E.  Rep.  1062. 

*  Mercantile  Nat.  Bank  v.  Parsons,  54  Minn.  56;  55  N.  W.  Rep.  825; 
40  Am.  St.  Rep.  299;  Marbury  v.  Ehlen,  72  Md.  206;  20  Am.  St.  Rep. 
467;  Shaw  t;.  Spencer,  100  Mass.  382;  97  Am.  Dec.  107;  1  Am.  Rep.  115; 
Sturtevant  v.  Jacques,  96  Mass.  526;  Loring  v.  Salisbury,  125  Mass. 
151;  Fishery;.  Brown,  104  Mass.  259;  6  Am.  Rep.  235;  Solari  v.  Snow, 
101  Cal.  387 ;  35  Pac.  Rep.  1004.  See,  also,  Golson  v.  Fielder,  2  Tex.  Civ. 
App.  400;  21  S.  W.  Rep.  173.  "It  is  a  familiar  doctrine,"  said  Mitchell, 
J.,  "that  a  purchaser  is  chargeable  with  notice  of  facts  recited  in  deeds 
under  or  through  which  he  takes  title;  and,  while  the  word  '  trustee'  in 
a  deed  gives  no  notice  of  the  name  of  the  beneficiary,  or  of  the  character 
of  the  trust,  yet  it  does  give  notice  of  a  trust  of  some  description,  which 


1005  THE    DOCTRINE    OF    NOTICE.  §  739 

in  Massachusetts,  where  slock,  issued  to  a  person  de- 
scribed as  "trustee,"  had  been  pledged  to  secure  his  own 
debt,  the  court  held  that,  unless  this  term  should  be  re- 
garded as  a  mere  deacriptio  perso7ise,  and  rejected  as  a 
nullit}^  there  was  notice  of  the  existence  of  a  trust  of 
some  kind.  It  held,  however,  that  this  term  showed  that 
the  holder  was  a  trustee  for  someone  whose  name  was 
not  disclosed,  and  tliat,  in  legal  effect,  it  was  the  same  as 
if  the  beneficiary  had  been  named,  as  all  persons  were 
charged  with  notice  of  the  existence  of  a  trust  of  some 
description.^  Where  a  deed  is  signed  by  one  of  the 
grantors,  on  the  assumption  that  he  is  the  attorney  in 
fact  for  the  other,  but  he  has  in  fact  no  authority,  such 
signature  is  sufficient  to  charge  the  purchaser  with  notice 
of  the  character  and  extent  of  the  principal's  interest  in 
the  land,  and  of  such  pretended  relation  of  agency  exist- 
ing at  the  time  of,  and  antecedent  to,  the  purchase  of  the 
land,  and  the  purchaser  acquires  a  title  subject  to  the 
interest  of  the  person  described  as  principal.^ 

§  739.  Structures  upon  the  laud. — It  has  been  fre- 
quently held,  in  accordance  with  the  soundest  equitable 
principles,  that  the  fact  that  structures  visible  to  every  one 
exist  upon  land  is  sufficient  to  make  it  the  duty  of  the 
purchaser  to  inquire  by  what  right  they  exist,  and  to 
affect  him  with  notice  of  an  easement.  If  there  is  an 
open,  graded  railway  track  across  land,  with  its  embank- 
ments and  excavations  capable  of  being  seen  by  every- 
body, a  person  who  purchases  the  land  under  these 
circumstances  takes  his  deed  with  notice  of  whatever 
rights  in  the  track  there  may  be  outstanding  in  others. 
The  warranty  deed   of  his  grantor  is  powerless  to  effect 

imposes  the  duty  of  inquiry  as  to  its  character  and  limitations;  and 
whatever  is  sufficient  to  put  a  person  of  ordinary  prudence  upon  inquiry 
is  constructive  notice  of  everythin<^  to  which  tiiat  inquiry  would  presum- 
ably have  led" :  Mercantile  Nut.  Bank  v.  Parsons,  54  Minn.  56;  40  Am. 
St.  Rep.  299. 

1  Shaw  V.  Spencer,  100  Mass.  382;  97  Am.  Dec.  107;  1  Am.  Rep- 
115. 

*  Solari  v.  Snow,  101  Cal.  387. 


§  740  THE    DOCTRINE    OF    NOTICE.  1000 

such  outstanding  rights  in  third  persons.  "The  purchaser 
of  real  estate  in  the  possession  of  a  third  person,"  said 
Biddle,  C.  J.,  "is  bound  to  take  notice  of  such  person's 
title  to  the  possession,  whether  his  title  be  legal  or  equi- 
table. This  is  a  familiar  principle  of  law,  and  we  think 
the  same  rule  should  apply  to  a  railroad  track,  graded  and 
established  at  the  time  the  vendee  makes  his  purchase. 
Such  a  track,  he  must  know,  is  inconsistent  with  any  ex- 
clusive right  to  the  lands  over  which  it  runs."  ^  Where 
land  has  been  conveyed  without  a  reservation,  the  occu- 
pation of  an  easement  in  land  adjoining  that  conveyed  is 
inconsistent  with  the  grant.  It  follows,  therefore,  that  a 
purchaser  from  the  grantee  in  such  deed  has  notice  of  a 
reservation  by  parol  of  the  easement.  A  was  the  owner  of 
a  piece  of  land  on  which  a  mill  had  been  erected,  and  he  had 
the  privilege  of  diverting  the  water  into  the  appurtenant 
millrace  on  the  land  of  B,who  had  an  equitable  title  only. 
A  subsequently  obtained  the  legal  title  to  the  whole  tract, 
and  conveyed  by  deed  the  legal  title  of  that  part  of  the  tract 
on  which  the  race  and  dam  stood  to  B,  free  from  encum- 
brances. The  deed  contained  covenants  of  seisin,  but 
made  no  reservation  or  mention  of  the  millrace.  The 
deed  was  recorded.  The  fact  that  A  subsequently  occu- 
pied the  mill  and  used  the  race  was  held  to  be  a  sufficient 
notice  to  a  purchaser  from  B  of  a  parol  reservation  in 
favor  of  A  of  the  right  to  the  race.^ 

§   740.      Searching-    the    record    not    alone    sufficient. 

When  a  person  has  received  such  information  as  to  place 
upon  him  the  duty  of  making  an  inquiry,  he  cannot  dis- 
charge that  duty  by  a  mere  examination  of  the  records.^ 

^  Paul  V.  Connersville  etc.  E.  R.  Co.,  51  Ind.  527,  530. 

»  Randall  v.  Silverthorn,  4  Pa.  St.  173.  For  further  illustrations  of 
this  rule,  see  Hervey  v.  Smith,  22  Beav.  299;  Raritan  Water  Power  Co. 
V.  Ve<,'hte,  21  N.  J.  Eq.  463,  478;  Blatchley  v.  Osborn,  33  Conn.  226;  Hoy 
V.  Bramhall,  19  N.  J.  Eq.  563 ;  97  Am.  Dec.  287 ;  Davis  v.  Sear,  Law  R. 
7  Eq.  427. 

*  Pringle  v.  Dunn,  37  Wis.  449;  19  Am.  Rep.  772;  Littleton  d.  Gid- 
dings,  47  Tex.  109;  Munroe  v.  Eastman,  31  Mich.  283;  Brinkman  v. 
Jones,  44  Wis.  498.    See,  also,  Witter  v.  Dudley,  42  Ala.  616. 


1007  THE  DOCTRINE  OF  NOTICE.  §  741 

"The  record,  consequent!}',  did  not  disprove  the  fact  of 
■which  they  were  notified,  but  was  merely  silent  on  the 
subject;  and  to  hold  that  they  might  rely  upon  it  without 
further  inquiry,  would  be  equivalent  to  holding  that  notice 
of  an  unrecorded  deed  must  always  be  ineffectual,  at  least 
unless  the  deed  itself  is  produced.  The  authorities  war- 
rant no  such  doctrine,  and  it  is  inconsistent  with  the 
statute  itself,  which  defeats  such  unrecorded  deeds  only 
at  the  instance  of  subsequent  purchasers  in  good  faith 
whose  deeds  are  duly  recorded.  There  is  no  ground  for 
saying  that  one  is  a  purcliaser  in  good  faith  wiio,  being 
notified  of  an  unrecorded  deed,  and  having  the  means  of 
determining  the  truth  of  the  notice,  instead  of  making 
use  of  such  means,  resorts  only  to  a  record  which  can 
give  him  no  information  respecting  unrecorded  instru- 
ments, and  then  purchases  in  disregard  of  the  rights  of 
the  real  owner.  A  second  purchaser  defeats  the  first  con- 
veyance only  by  bringing  himself  within  the  letter  of 
the  statute;  but  he  is  not  within  it,  if  knowingly  he  buys 
of  one  who  has  no  title  to  sell."^ 

§  741.  Further  inquiry. — To  say  that  an  examination 
of  the  record  alone  is  sufficient,  is  in  efifect  to  defeat  the 
doctrine  of  notice.  An  inquiry  should  at  least  be  made 
among  the  vendor's  neighbors.'^  A  mortgage  was  made 
to  a  railroad  company,  but  was  defectively  recorded.  A 
person  subsequently  purchased  a  part  of  the  mortgaged 
premises,  and  "had  heard  that  there  was  a  defective  rail- 
road mortgage  upon  them,  but  did  not  look  for  it,  because 
his  abstract  did  not  show  it,"  He  was  made  a  defendant 
in  an  action  upon  the  mortgage,  and  it  was  held  that  he 
must  be  considered  as  having  had  actual  notice  of  the 
mortgage.'  But  where  a  person  equitably  entitled  to  a 
conveyance  is  in  the  open  and  adverse  possession  of  the 
premises,  but  the  legal  owner  fraudulently  mortgages  the 

*  Mr.  Justice  Cooley.  in  Shotwell  v.  Harrison,  30  Mich.  179,  in  which 
case  IJarniird  v.  Campau,  29  Mich.  162,  is  diatingnished. 
»  Littleton  v.  Gidding,  47  Tex.  109. 
»  Tringle  v.  Dunn,  37  Wis.  449;  19  Am.  Rep.  772. 


§  742  THE    DOCTRINE    OF    NOTICE.  1008 

land  to  one  who  acts  in  good  faith,  and  has  no  knowledge 
of  the  possession  and  claims  of  the  party  equitably  en- 
titled to  a  conveyance,  the  mortgagee  is  not  chargeable 
with  notice  because  he  did  not  inquire  who  was  in  pos- 
session, and  confined  his  search  to  the  record  title/  The 
records  will  protect  a  purchaser  examining  them  so  far 
as  they  can  protect  him,  but  he  necessarily  assumes  the 
risk  that  the  actual  state  of  the  title  may  not  correspond 
with  that  which  the  records  disclose.^  , 

§  742.  Contradiction  of  information. — Where  the 
grantor  says  that  his  title  has  been  defective,  or  has  been 
encumbered,  the  purchaser  has  received  sufficient  infor- 
mation to  put  him  upon  inquiry,  and  the  fact  that  the 
grantor  adds  that  his  title  has  been  made  perfect,  or  the 
encumbrance  has  been  removed,  will  not  relieve  the  pur- 
chaser from  making  inquiry,  and  determining  this  fact 
for  himself.*  In  one  case  the  court  said  that  it  must  have 
been  known  to  a  purchaser  "  that  a  man  who  was  propos- 
ing to  sell  land,  if  he  was  doing  it  in  fraud  of  the  heirs 
of  his  vendee,  could  easily  manufacture  a  tale  of  false- 
hood, and  would  do  it.  If  it  would  be  sufficient  dili- 
gence to  rely  upon  his  mere  word  of  denial,  and  stop 
further  inquiry  on  that  account,  it  would  not  likely  be 
wanting  in  any  case.'^^  If  a  purchaser  is  informed  by 
his  grantor  that  there  is  a  mortgage  upon  the  property, 
but  that  the  mortgage  has  been  satisfied,  and  he  acts 
upon  this  statement  without  making  further  inquiry,  he 
does  so  at  his  own  peril.  Before  taking  his  deed,  he 
should  have  endeavored  to  ascertain  the  truth  of  the 
statement  from  the  mortgagee.^  But  where  the  informa- 
tion is  given  by  a  stranger,  accompanied  by  a  statement 

1  Harral  v.  Leverty,  50  Conn.  46;  47  Am.  Eep.  608. 

"  Reck  V.  Clapp,  98  Pa.  St.  581. 

»  Price  V.  McDonald,  1  Md.  403;  54  Am.  Dec.  657;  Littleton  v.  Gid- 
dings,  47  Tex.  109 ;  Hudson  v.  Warner,  2  Har.  &  G.  415;  Bunting  v. 
Ricks,  2  Dev.  &  B.  Eq.  130 ;  Russell  v.  Petree,  10  Mon.  B.  184.  See  Rog- 
ers V.  Jones,  8  N.  H.  264;  Jones  v.  Smith,  1  Hare,  43. 

*  Littleton  v.  Giddings,  47  Tex.  109,  118. 

*  Russell  V.  Petree,  10  Mon.  B.  184,  186. 


1009  THE    DOCTRINE    OP    NOTICE.  §§  743,744 

that  the  adverse   claim  no  longer  exists,  the  rule  is  dif- 
ferent.^ 

§  743.  What  is  due  inquiry. — It  is  impossible  to  lay- 
down  any  absolute,  unqualified  rule  to  determine  what  is 
the  due  inquiry  wliich  a  person  is  compelled  to  make 
when  he  has  received  such  information  as  to  make  it  his 
duty  to  inquire.  The  law  holds  him  to  good  faith  and 
reasonable  diligence.  Each  case  must  depend  for  its  de- 
cision upon  its  own  peculiar  facts.  Still  it  is  apparent  to 
every  reasonable  man,  that  by  resort  to  certain  sources 
for  information  he  will  in  all  probability  learn  the  truth. 
He  may  not  learn  the  true  facts  after  he  has  made  inquiry, 
but  a  neglect  to  prosecute  his  search  in  certain  directions 
is  sufficient  to  show  that  he  has  not  made  that  due  inquiry 
which  the  law  exacts.  He  should,  for  instance,  make  in- 
quiry of  his  grantor  as  to  the  truth  of  any  matter  upon 
which  he  is  put  upon  inquiry,  and  an  omission  to  do  so 
would  manifest  an  absence  of  due  care.^  He  should  also 
examine  the  records  which  may  give  him  the  very  infor- 
mation he  seeks.  If  he  fails  to  do  so,  he  may  be  said  to 
have  failed  in  making  due  inquiry.^ 

§  744.  Third  persons. — And  in  many  cases  the  proper 
course  to  pursue  would  be  to  make  inquiry  of  third  per- 
sons. When  such  a  course  is  tlie  one  that  a  reasonable 
and  prudent  man  would  adopt,  it  must  be  pursued,  or  else 
there  will  not  be  sufficient  diligence  to  enable  the  pur- 
chaser to  say  that  he  has  made  due  inquiry.* 

*  Buttrick  v.  Holden,  13  Met.  355;  Williamson  r.  Brown,  15  N.  Y.354; 
In  re  Bri^ht's  Trusts,  21  Beav.  430;  Rogers  v.  Wiley,  14  111.  65-  56  Am' 
iJec.  491. 

'  Sergeant  v.  Ingersoll,  7  Pa.  St.  340.  See  Espin  v.  Pemberton,  3  De 
Gex  &  J.  547.     But  see  Grundies  v.  Reid,  107  111.  304. 

»  Barnard  v.  Campau,  29  Mich.  162;  Van  Keuren  v.  Central  R.  R.,  38 
N.  J.  L.  165;  Bellas  v.  McCarty,  10  Watts,  13,  28;  Jackson  v.  Van  Valk'cn- 
burgh,  8  Oowen,  2G0. 

*  Littleton  v.  Giddings,  47  Tex.  109;  Witter  v.  Dudley,  42  Ala.  616; 
Russell  V.  Sweezey,  22  Mich.  235;  Penney  v.  Waits,  1  Macn.  &  G.  150^ 
165;  Broadbent  v.  Barlow,  3  De  Gex,  F.  &  J.  570;  Hewitt  v.  Loosemore,' 
9  Hare,  419;  Ilopgood  v.  Ernest,  3  De  Gex,  J.  &  S.  116;  Atterbury  v'. 

I»EE1;S,  Vou   IX.  — 61 


§  745  THE    DOCTRT?TE    t)F    NOTICE.  1010 

§  745.  Pi'csuinptiou  may  be  rebutted. — The  presump- 
tion that  a  person  has  knowledge  of  such  facts  as  he 
might  learn  after  making  due  inquiry,  when  he  has  no- 
tice of  such  facts  as  to  put  him  upon  inquiry,  is  not  con- 
clusive. He  may  rebut  the  presumption  b}^  showing  that 
he  made  due  inquiry  and  did  not  acquire  the  knowledge. 
"The  true  doctrine  on  this  subject  is,  that  where  a  pur- 
chaser has  knowledge  of  any  fact,  sufficient  to  put  him 
upon  inquiry  as  to  the  existence  of  some  right  or  title  in 
conflict  with  that  he  is  about  to  purchase,  he  is  presumed 
either  to  have  made  the  inquiry  and  ascertained  the  ex- 
tent of  such  prior  right,  or  to  have  been  guilty  of  a  degree 
of  negligence  equally  fatal  to  his  claim  to  be  considered 
as  a  bona  fide  purchaser.  This  presumption,  however,  is 
a  mere  inference  of  fact,  and  may  be  repelled  by  proof 
that  the  purchaser  failed  to  discover  the  prior  right,  not- 
withstanding the  exercise  of  proper  diligence  on  his  part."  ^ 

Wallis,  8  De  Gex,  M.  &  G.  454;  Maxfield  v.  Burton,  Law  R.  17  Eq.  15. 
And  see  Epley  v.  Witherow,  7  Watts,  163;  McGehee  v.  Gondrat,  20  Ala. 
95;  Hunt  v.  Elmes,  2  De  Gex,  F.  &  J.  578;  GreenHeld  v.  Edwards,  2  De 
Gex,  J.  &  S.  582;  Ware  v.  Lord  Egmont,  4  De  Gex,  M.  &  G.  460;  Wilson 
V.  McCulIough,  23  Pa.  St.  440;  62  Am.  Dec.  347;  Credland  v.  Potter, 
Law  R.  10  Ch.  8;  Ratcliffe  v.  Barnard,  Law  R.  6  Ch.  652;  Roberts  v. 
Croft,  2  De  Gex  &  J.  1. 

^  Williamson  v.  Brown,  15  N.  Y.  354,  360,  per  Selden,  J.,  and  cases 
cited.  See,  also,  Jones  t).  Smith,  1  Hare,  43;  Hewitt  v.  Loosemore,  9 
Hare,  449;  Whitbread  v.  Boulnois,  1  Younge  &  C.  3l.3;  Flagg  v.  Mann, 
2  Sum.  486,  554;  Hanbury  v.  Litchfield,  2  Mylne  &  K.  6j!9;  Griffith  v. 
Griffith,  1  Hoff.  Ch.  153;  Hunt  v.  Elmes,  2  De  Gex,  F.  &  J.  578;  Espin 
V.  Pemberton,  3  De  Gex  &  J.  547.  In  Rogers  v.  Jones,  8  N.  H.  264,  269, 
Mr.  Justice  Parker  said:  "To  say  that  lie  was  put  upon  inquiry,  and 
that  liaving  made  all  due  investigation  without  obtaining  any  knowledge 
of  title,  he  was  still  chargeable  with  notice  of  a  deed,  if  one  reall}'  did 
exist,  would  be  absurd."  See,  to  same  effect,  Acer  v.  Westcott,  46  N.  Y. 
384 ;  7  Am.  Rep.  355 ;  McGehee  v.  Gondrat,  20  Ala.  95 ;  Schweiss  v.  Wood- 
ruff, 73  Mich.  473;  41  N.  W.  Rep.  511 ;  Thompson  v.  Pioche,  44  Cal.  508; 
Parker  v.  Conner,  93  N.  Y.  118;  45  Am.  Hep.  178;  Bell  v.  Davis,  75  Ind. 
314;  Wilson  v.  Williams,  25  Tex.  54.  That  the  question  of  diligence  is 
one  of  fact,  see  Schutt  v.  Large,  6  Barb.  373;  Nute  v.  Nute,  41  N.  H.  60; 
Rogers  v.  Wiley,  14  111.  65 ;  56  Am.  Dec.  491 ;  Parker  v.  Conner,  93  N.  Y. 
118;  45  Am.  Rep.  178;  Chiles  v.  Conley,  2  Dana,  21;  McMechantj.  Gnf- 
fing,  3  Pick.  149;  15  Am.  Dec.  198.  That  it  is  one  of  law,  see  Morris  v. 
Daniels,  35  Ohio  St.  406 ;  Pollak  v.  Davidson,  87  Ala.  551. 


1011  THE    DOCTRINE    OF    NOTICE.  §  745 

A  deed  conveying  the  premises  to  the  wife  of  the  tenant 
in  possession  was  duly  executed  and  delivered.  The  deed 
contained  a  condition  that  if  the  wife  paid  a  certain  sum 
in  a  specified  time,  the  deed  should  be  in  force,  otherwise 
it  should  be  void.  The  deed  was  not  acknowledged,  but 
was  left  in  the  hands  of  the  grantor  for  the  purpose  of 
having  him  acknowledge  it.  The  grantor  on  the  same 
day  made  a  mortgage  to  another  person.  At  the  time  of 
making  the  first  mortgage,  he  exhibited  the  first  deed  and 
declared  that  no  delivery  of  it  had  been  made.  There 
was  no  evidence  of  any  change  of  possession  or  acts  of 
ownership  after  the  execution  of  the  first  deed,  nor  was 
there  any  other  fact  to  give  notice  of  its  being  a  valid  con- 
veyance. It  was  held  under  these  circumstances  that  the 
mortgagee  whose  conveyance  was  first  recorded  had  the 
priority.^  But  if  the  purchaser  fails  to  make  due  inquiry, 
the  presumption  of  notice  is  conclusive.^ 

'  Rogers  v.  Jones,  8  N.  H.  264. 

*  Maul  V.  Rider,  59  Pa.  St.  167 ;  Chicago  etc.  R.  R.  v.  Kennedy,  70  111. 
350;  Kennedy  v.  Green,  3  Mylne  &  K.  699;  Helms  v.  Chadbourne,  45 
Wis.  60;  Loughbridge  v.  Bowland,  52  Miss.  546;  Mullison's  Estate,  68 
Pa.  St.  212;  Maxfield  v.  Burton,  Law  R.  17  Eq.  15;  Petcher  v.  Rawlins, 
Law  R.  11  Eq.  53;  Briggs  v.  Jones,  Law  R.  lOEq.92;  Bellas  v.  McOarty, 
10  Watts,  13.  On  the  question  as  to  whether  a  subsequent  purchaser  is 
presumed  to  have  become  such  in  good  faith  the  authorities  are  divided. 
On  one  hand  it  is  held  that  he  is  presumed  to  be  a  purchaser  in  good 
faith,  and  that  he  who  attacks  the  deed  has  the  burden  of  proof:  Hiller 
V.  Jones,  66  Miss.  636;  Vest  v.  Michie,  31  Gratt.  149;  31  Am.  Rep.  722; 
Roll  V.  Rea,  50  N.  J.  L.  264;  Foust  v.  Moorman,  2  Ind.  17;  Marshall  v. 
Dunham,  66  Me.  539;  Holmes  v.  Stout,  10  N.  J.  Eq.  419;  Anthony 
V.  Wheeler,  130  111.  128;  17  Am.  St.  Rep.  281;  Coleman  v.  Barklew,  27 
N.  J.  L.  357;  Rogers  v.  Wiley,  14  111.  65;  56  Am.  Dec.  491 ;  Morrison  v. 
Kelly,  22  111.  610;  74  Am.  Dec.  169;  Wood  v.  Chapin,  13  N.  Y.  509;  67 
Am.  Dec.  62;  Wilkins  v.  Anderson,  11  Pa.  St.  399;  Spofford  v.  Weston, 
29  Me.  140;  Pomroy  v.  Stevens,  11  Met.  244;  Butler  v.  Stevens,  26  Me. 
484;  McGahee  v.  Sneed,  1  Dev.  &  B.  Eq.  383;  Bush  v.  Golden,  17  Conn. 
594;  Lacustrine  FertiHzfr  Co.  v.  Lake  (iuano  &  F.  Co.,  82  N.  Y.  476; 
Ryder  f.  Rush,  102  111.  338.  On  the  other  hand,  it  is  held  that  one  claim- 
ing to  be  innocent  purcliaser  must  prove  the  facts  showing  him  to  be  such. 
See  Moore  v.  Curry,  36  Tex.  668;  Watkins  i).  Edwards,  23  Tex.  447; 
Hamman  v.  Keigwin,  39  Tex.  34;  Colton  v.  Seavey,  22  Cal.  496;  Galland 
V.  Jackman,  26  Cal.  79;  85  Am.  Dec.  172;  Landers  v.  Bolton,  26  Cal.  393; 
Root  V.  Bryant,  57  Cal.  48;  Wallace  t;.  Wilson,  30  Mo.  335;  Nolen  v. 
Heirs  of  Gwyn,  16  Ala.  725;  Sillyinan  v.  King,  36  Iowa,  207. 


§  746  THE    DOCTRINE    OF    NOTICE.  1012 

§  746.  Second  purchaser  without  notice.— Although 
the  first  purchaser  lias  notice,  and  takes  title  accordingiy, 
yet  a  second  purchaser  from  him  for  value  and  without 
notice  is  a  bona  fide  purchaser,  and  takes  a  valid  title.^ 
The  second  purchaser  is  entitled  to  protection  for  his 
own  good  faith.  It  would  be  inequitable  to  visit  upon 
him  the  consequences  of  the  notice  possessed  by  his 
grantor.  An  additional  reason  for  this  rule  is  the  in- 
security of  titles  that  would  otherwise  result.  If  a  man, 
acting  in  the  utmost  good  faith,  paying  a  valuable  con- 
sideration, and  not  in  any  manner  charged  with  notice, 
should  be  liable  to  lose  his  title  because  the  person  from 
whom  he  purchased  had  notice,  no  title  would  be  safe. 
Its  validity  would  depend  upon  the  fact  that  all  the  per- 
sons through  whom  the  last  owner  derived  title  were  en- 
tirely free  from  notice  of  the  rights  of  others,  and  a  title 
apparently  invulnerable  might  at  any  time  be  overthrown. 
Where  A  executed  a  deed  to  B,  which  was  never  recorded, 
B  conveyed  to  C  by  a  deed  which  was  placed  on  record, 
and  subsequently  B  surrendered  to  A  the  deed  received 
from  him,  and  it  was  then  destroyed,  and  D,  who  knew 
of  the  fraudulent  cancellation  of  A's  first  deed,  received  a 
deed  from  A,  and  he,  D,  conveyed  to  E,  a  purchaser  for 
a  valuable  consideration,  without  notice  of  the  fraud,  it 

1  Price  V.  Martin,  46  Miss.  489;  Paris  v.  Lewis,  85  111.  597;  Tompkins 
V.  Powell,  6  Leigh,  576;  Hardin  v.  Harrington,  11  Bush,  367;  Pringle  v. 
Dunn,  37  Wis.  449;  19  Am.  Rep.  772;  Varick '?;.  Briggs,  6  Paige,  323; 
Demarest  v.  .Wynkoop,  3  Johns.  Oh.  129;  8  Am.  Dec.  467;  Glidden  v. 
Hunt,  24  Pick.  221.  And  see  Fallass  v.  Pierce,  80  Wis.  443 ;  Jackson 
V.  Van  Valkenburgh,  8  Cowen,  260;  Truluck  v.  Peeples,  3  Kelly,  446; 
Knox  V.  Silloway,  10  Me.  201 ;  Mallory  v.  Stodder,  6  Ala.  801 ;  Connecti- 
cut V.  Bradish,  14  Mass.  296;  Somes  v.  Brewer,  2  Pick.  184;  13  Am.  Dec. 
406;  Wood  v.  Mann,  1  Sum.  506;  Galatian  v.  Erwin,  Hopk.  Oh.  48; 
Snyder  v.  Board  of  Oommrs.  of  Boulder  Oo.,  8  West  Ooast  Rep.  533; 
Say  ward  v.  Thompson,  11  Wash.  706 ;  40  Pac.  Rep.  379 ;  Lee  v.  Oato,  27 
Ga.  637;  73  Am.  Dec.  746;  Hoit  v.  Russell,  56  N.  H.  569;  Bell  v.  Twi- 
light, 18  N.  PL  159;  45  Am.  Dec.  367 ;  Moore  w.  Curry,  36  Tex.  668; 
Sydnor  v.  Roberts,  13  Tex.  598;  65  Am.  Dec.  84;  Hill  v.  McNichol,  76 
Me.  314;  Slattery  v.  Schwannecke,  118  N.  Y.  543;  23  N.  E.  Rep.  922; 
Decker  v.  Boice,  83  N.  Y.  215;  Danbury  v.  Robinson,  14  N.  J.  Eq.  213; 
82  Am.  Dec.  244;  Smith  v.  Vreeland,  16  N.  J.  Eq.  198;  Jones  v.  Hudson, 
23  S.  0.  494. 


1013  THE    DOCTRINE    OF    NOTICE.  §  747 

was  decided  that  E's  title  was  superior  to  that  of  C.^ 
"Courts  of  equity  grant  relief  against  purchasers  with 
notice  for  the  reason  alone  that  to  purchase  under  such 
circumstances  is  a  fraud  on  the  rightful  claimant  or 
owner;  but  this  rule  has  never  been  carried  so  far  as  to 
grant  relief  against  an  innocent  purchaser,  although  his 
grantor  may  have  purchased  in  bad  faith,  and  to  do  so 
would  be  to  subvert  the  very  principle  upon  which  the 
relief  is  given."  ^ 

§  747.  Second  purchaser  with  notice  from  bona  fide 
purchaser. — Where  a  person  has  bought  land  for  value, 
without  notice,  or  in  other  words,  is  a  bona  fide  purchaser, 
he  has  a  valid  title  so  far  as  rights  are  concerned,  of  which 
he  has  neither  actual  nor  constructive  notice.  He  is 
the  owner  of  the  property.  But  his  ownership  would  be 
practically  valueless  to  him  unless  the  riglit  of  disposition 
was  an  inseparable  incident  of  it.  To  say  that  he 
can  sell  it  only  to  persons  who  have  no  notice,  is  to  limit 
the  field  of  purchasers,  and  possibly  to  deprive  him  of 
the  power  of  disposition  altogether.  His  title  is  worth 
nothing  to  him  unless  he  has  the  right  to  sell  to  whoever 
desires  to  buy.  It  is  for  these  reasons,  a  well-settled 
rule  that  when  a  bona  fide  purchaser  acquires  land,  he 
holds  it  free  from  equities  of  which  he  had  no  notice, 
and  may  convey  his  title  as  he  holds  it  to  others  who 
have  notice.'     And  the  same  rule  in  relation  to  the  rights 

»  Knox  V.  Silloway,  10  Me.  201. 

'  Hardin's  Executors  v.  Harrington,  11  Bush,  367,  372,  per  Pryor,  J. 

*  Funkhouser  v.  Lay,  78  Mo.  458;  Harrison  v-  Forth,  Prec.  Ch.  51  j 
Brandlyn  v.  Ord,  1  Atk.  571;  Varick  v.  Briggs,  6  Paige,  H23;  Lindsey 
V.  Kankin,  4  Bibb,  482;  Holmes  v.  Stout,  3  Green  Ch.  492;  Dana  v. 
Newhall,  13  Mass.  498;  Fletcher  v.  Peck.  6  Cranch,  87;  Webster 
V.  Van  Steenbergh,  46  Barb.  211;  Moore  v.  Ourry,  36  Tex.  668;  Alli- 
Bon  V.  Hagan,  12  Nev.  38;  McSbirley  v.  Birt,  44  Ind.  i}82;  Blight's 
Heirsv.  I5anks,6  Mon.  192;  17  Am.  Dec.  136;  Curtis  t;.  Lunn,  6  Munf.  42; 
Shinn  v.  Shinn,  15  P.radw.  (111.)  141 ;  Trull  v.  Bigelow,  16  Mass.  406;  8  Am. 
Dec.  144;  Lacy  v.  Wilson,  4  Munf.  313;  Halstead  v.  Bank  of  Kentucky, 
4  Marsh.  J.  J.  554;  Ferrars  v.  Cherry,  2  Vern.  383;  Lowther  v.  Carlton, 
2  Atk.  242;  McQueen  v.  Farquhar,  11  Ves.  467;  Sweet  v.  Southcote,  2 
Bro.  Ch.  66;  Pringle  v.  Dunn,  37  Wis.  449;  19  Am.  Rep.  772;  Vattier  v. 


§   747  THE    DOCTRINE    OF    NOTICE.  1014 

of  subsequent  purcliasers  applies  in  case  of  fraud,  as  well 
as  in  those  cases  which  we  have  been  treating.  "If  a 
suit  be  brought  to  set  aside  a  conveyance  obtained  by- 
fraud,"  said  Chief  Justice  Marshall,  "and  the  fraud  be 
clearly  proved,  the  conveyance  will  be  set  aside  as  between 
the  parties;  but  the  rights  of  third  persons,  who  are  pur- 
chasers without  notice  for  a  valuable  consideration,  can- 
not be  disregarded.  Titles  which,  according  to  every 
legal  test,  are  perfect,  are  acquired  with  that  confidence 
which  is  inspired  by  the  opinion  that  the  purchaser  is 
safe.  If  there  be  any  concealed  defect,  arising  from  the 
conduct  of  those   who  held   the  property  long  before  he 

Hinde,  7  Peters,  252:  Griffith  v.  Griffith,  9  Paige,  315;  Fletcher  v.  Peck, 
6  Cranch,  87;  Alexander  v.  Pendleton,  8  Cranch,  462;  Boone  v.  Chiles, 
10  Peters,  177;  Boynton  v.  Rees,  8  Pick.  329;  19  Am.  Dec.  326;  Rutgers 
r.  Kingsland,  3  Plalst.  Ch.  178;  Bracken  v.  Miller,  4  Watts  &  S.  102; 
Abadie  v.  Lobero,  36  Cal.  390;  Rorer  Iron  Co.  ».  Trout,  83  Va.  397;  5 
Am.  St.  Rep.  285;  2  S.  E.  Rep.  713;  Hill  v.  McNichol,  76  Me.  314; 
Blatchley  v.  Osborn,  33  Conn.  226;  Whitfield  v.  Riddle,  78  Ala.  99; 
Bartlett  v.  Varner,  56  Ala.  580;  Fargason  v.  Edrington,  49  Ark.  207;  4 
S.  W.  Rep.  763;  Holmes  v.  Buckner,  67  Tex.  107;  2  S.  W.  Rep.  452; 
Lewis  V.  Johnson,  68  Tex.  448;  4  S.  W.  Rep.  644;  Gulf  etc.  Ry.  Co.  v. 
Gill,  5  Tex.  Civ.  App.  496;  23  S.  W.  Rep.  142;  Grace  v.  Wade,  45  Tex. 
622;  Peterson  v.  McCauley  (Tex.  Civ.  App.),  25  S.  W.  Rep.  826; 
Arrington  v.  Arrington,  114  N.  C.  151 ;  19  S.  E.  Rep.  351 ;  Wallace  v, 
Cohen,  111  N.  0.  103;  15  S.  E.  Rep.  892;  Shotwell  v.  Harrison,  22  Mich. 
410;  Brown  v.  Cody,  115  Ind.  484;  18  N.  E.  Rep.  9;  Klinger  v.  Lemler, 
135  Ind.  77;  34  N.  E.  Rep.  698;  Arnold  v.  Smith,  80  Ind.  417;  Trentman 
V.  Eldridge,  98  Ind.  525;  Evans  v.  Nealis,  69  Ind.  148;  Sharpe  v.  Davis, 
76  Ind.  17;  Doyle  v.  Wade,  23  Fla.  90;  11  Am.  St.  Rep.  334;  1  So.  Rep. 
516;  Eldridge  v.  Post,  20  Fla.  579;  Day  v.  Clark,  25  Vt.  397;  Barber  v. 
Richardson,  57  Vt.  408;  Church  v.  Ruland,  64  Pa.  St.  432;  Ashton's 
Appeal,  73  Pa.  St.  153;  Colquitt  t;.  Thomas,  8  Ga.  258;  Lee  v.  Cato,  27 
Ga.  637;  73  Am.  Dec.  746;  Pierce  v.  Faunce,  47  Me.  507;  Brackett  v. 
Ridlon,  54  Me.  426;  Card  v.  Patterson,  5  Ohio  St.  319;  East  v.  Pugh,  71 
Iowa,  162;  Henninger  v.  Heald,  51  N.  J.  Eq.  74;  29  Atl.  Rep.  190;  Roll 
V.  Rea,  50  N.  J.  L.  264 ;  12  Atl.  Rep.  905;  Glidden  v.  Hunt,  24  Pick.  221 ; 
Lacustrine  Fer.  Co.  v.  Lake  Guano  &  F.  Co.,  82  N.  "".  476;  St.  Joseph 
Mfg.  Co.  V.  Daggett,  84  111.  556;  Bartlett  v.  Varner,  56  Ala.  580;  Cala- 
han  V.  Monroe,  56  Ala.  303.  And  see  Bumpus  v.  Plattner,  1  Johns.  Ch. 
213;  Demarest  v.  Wynkoop,  3  Johns.  Ch.  129;  8  Am.  Dec.  467;  Mott  v. 
Clark,  9  Barr.  399;  49  Am.  Dec.  566;  Church  v.  Church,  1  Casey,  278; 
Filby  V.  Miller,  1  Casey,  264;  City  Council  v.  Page,  Spear  Eq.  159.  But 
see  Johns  v.  Sewell,  33  Ind.  1,  where  it  was  held  that  where  the  first 
purchaser  is  a  mere  volunteer,  this  rule  does  not  apply. 


1015  THE  DOCTRINE  OF  NOTICE.      §§  748,  749 

acquired  it,  of  which  he  had  no  notice,  that  concealed 
defect  cannot  be  set  up  against  him.  He  has  paid  his 
money  for  a  title  good  at  law;  he  is  innocent,  whatever 
may  be  the  guilt  of  others,  and  equity  will  not  subject 
him  to  the  penalties  attached  to  that  guilt.  All  titles 
would  be  insecure,  and  the  intercourse  between  man  and 
man  would  be  very  seriously  obstructed,  if  this  principle 
be  overturned.^"  Where  a  person  fraudulently  acquires 
the  equity  of  redemption  of  land  on  which  there  is  a 
bona  fide  mortgage,  he  may,  by  purchasing  at  the  mort- 
gage sale  obtain  an  indefeasible  title.^ 

§  748.  Former  owner  with  notice. — There  is  another 
rule  in  relation  to  this  subject,  which,  while  it  may  be 
considered  an  exception,  is  clearly  just.  If  the  title  be 
conveyed  to  a  person  without  notice,  he  is  a  bona  fide  pur- 
chaser and  may  transfer  his  title,  freed  from  equities  of 
which  he  had  no  notice,  to  all  persons  but  a  former  owner 
of  the  same  land  who  had  notice.  When  the  land  comes 
back  to  such  a  person  again,  it  is  subject  to  all  the  equities 
that  attached  to  it  while  he  held  it.* 

§  749.  Tenant  in  common  without  notice. — A  ten- 
ant in  common  who  has  notice  cannot  avail  himself  of  the 
want  of  notice  of  his  cotenant.  AVe  have  referred  to  a 
case  in  a  previous  section  where  this  principle  was  in- 
volved.* The  reason  that  courts  give  to  a  purchaser  with- 
out notice,  protection,  is,  that  having  acted  in  good  faith, 
he  should  not  suffer  from  the  negligence  of  him  whose 
duty  it  was  to  notify  the  public  of  his  interest  by  the 
means  afforded  by  law.     But  if  he  has  notice,  he  cannot 

'  Fletcher  v.  Peck,  6  Cranch,  87,  133.  And  see  Galatian  v.  Erwin, 
Hopk.  Ch.  48;  Wood  v.  Mann,  1  Sum.  506;  Somes  v.  Brewer,  2  Pick. 
184;  13  Ara.  Dec.  406. 

*  Funkhouser  v.  Lay,  78  Mo.  458. 

*  Asliton's  Appeal,  7:5  Pa.  St.  153;  Trentman  v.  Eldridge,  98  Ind.  525; 
Church  V.  Kuland,  64  Pa.  St.  432;  Kennedys.  Daly,  1  Schoales  &  L,  355; 
Troy  City  Bunk  v.  Wilcox,  24  Wis,  671;  Allison  v.  Hagan,  12  Nev. 
38;  Schutt  v.  Large,  6  Barb.  373;  Church  v.  Church,  25  Pa.  St.  278. 

*  See  (j  734,  ante. 


v^  750  thp:  doctrine  of  notice.  1016 

claim  any  benefit  from  the  fact  that  another  has  no  no- 
tice. The  latter  may  claim  this  protection,  if  otherwise 
he  would  suffer  injury.  But  this  defense  is  personal  to 
himself.  His  want  of  notice  cannot  avail  a  cotenant, 
who  must  suffer  tlie  consequences  arising  from  knowledge 
of  an  outstanding  encumbrance.  In  case  of  a  partition, 
the  encumbrance  may  be  enforced  against  the  part  of  the 
land  held  by  him  in  severalty.^ 

§  750.     Notice    of  intention    to    execute  a    deed. — A 

purchaser  is  not  bound  by  notice  of  the  intention  of  par- 
ties to  execute  a  deed.  Until  the  deed  is  actually  exe- 
cuted, notice  of  what  the  parties  have  in  contemplation 
cannot  affect  him.  Until  the  intention  has  been  carried 
out,  the  title  has  not  passed,  and  it  may  be  that  the  in- 
tention of  the  parties  will  be  altered  by  other  causes,  or 
may  fail  of  being  consummated.  A  purchaser  had  infor- 
mation that  a  draft  of  a  deed  had  been  prepared,  but  not 
that  the  deed  had  in  fact  been  executed.  It  was  held  that 
although  the  deed  had  really  been  executed,  he  could  not 
be  charged  with  notice  of  it  as  a  deed.^  So,  on  the  same 
principle,  where  one  or  two  creditors  of  an  insolvent 
debtor  knew  only  that  a  deed  was  being  executed  to  con- 
vey the  land  of  the  debtor  to  the  other  creditor,  and  at- 
tached the  land  before  the  deed  was  recorded,  but  not 
before  its  execution  and  delivery,  the   lien  of  the  attach- 

1  Blatchley  v.  Osborn,  33  Conn.  226.  The  court  said  that  if  E  "  saw 
fit  heedlessly  to  accept  of  less  than  he  was  justly  entitled  to  in  making 
the  division,  when  he  had  full  knowledge  of  Blatchley's  rights,  he  clearly 
ought  not  to  be  permitted  now  to  deprive  the  petitioner  of  his  rights  to 
the  passway,  because  of  an  injury  which  he  has  brought  upon  himself. 
The  petitioner  must  suffer  a  great  wrong  if  deprived  of  his  passway,  and 
he  is  in  every  respect  an  innocent  party.  The  respondent  does  not 
stand  in  this  favorable  light  toward  the  petitioner,  whose  equitable  in- 
terest he  attempted  to  take  away  on  the  ground  that  it  had  not  become 
vested  in  him  by  virtue  of  any  legally  recorded  deed,  and  if  his  specula- 
tion instead  of  proving  a  success  has  operated  to  his  pecuniary  injury,  it 
is  the  subject  of  less  regret  than  would  have  been  occasioned  if  he  bad 
succeeded  in  unjustly  depriving  the  petitioner  of  his  equitable  ownership 
in  the  passway." 

"  Cothay  v.  Sydenham,  2  Bro.  Ch.  291. 


1017  THE  DOCTRINE  OF  NOTICE.     '       §  751 

meat  was  allowed  to  prevail  against  the  deed.  "  It  was 
not,  therefore,"  said  Parker,  C.  J.,  "  the  knowledge  of  an 
intent  to  convey  or  attach,  which  will  prevent  the  legal 
effect  of  an  attachment  by  another  creditor,  which  gets  to 
be  first  in  point  of  time,  but  the  knowledge  of  an  actual 
passing  of  the  title  which  is  complete  against  everyone 
with  notice,  whether  by  registry  or  personal."  ^ 

§  751.  Fraud. — Where  a  person  is  asked  if  he  has  an 
encumbrance  or  claim  upon  an  estate,  and  answers  that 
he  has  not,  he  will,  if  the  circumstances  are  strong 
enough  to  justify  a  court  in  pronouncing  him  guilty  of 
fraud,  be  postponed  in  the  enforcement  of  his  rights  to 
the  party  whom  he  has  misled.'^  "  There  is  no  principle 
better  settled,  nor  one  founded  on  more  solid  considera- 
tions of  equity  and  public  utility,  than  that  which  de- 
clares that  if  one  knowingly,  though  he  does  it  passively 
by  looking  on,  suffers  another  to  purchase  and  spend 
money  on  land,  under  an  erroneous  opinion  of  title,  with- 
out making  known  his  claim,  he  shall  not  afterward  be 
permitted  to  exercise  his  legal  right  against  such  person. 
....  In   equity,  when  a  man  has  been  silent  when  in 

»  Gushing  V.  Hurd,  4  Pick.  252,  256;  16  Am.  Dec.  335.  See,  also, 
Brackett  v.  Wait,  6  Vt.  411;  Stewart  v.  Triompson,  3  Vt.  264;  Denton  v. 
Perry,  5  Vt.  382;  Warden  v.  Adams,  15  Mass.  233,  237;  McMechan  v. 
Griffins,  3  Pick.  149,  154;  15  Am.  Dec.  198.  And  see  Priest  v.  Rice,  1 
Pick.  168;  11  Am.  Dec.  156. 

'  Fay  V.  Valentine,  12  Pick.  40;  22  Am.  Dec.  397;  Miller  v.  Bingham, 
29  Vt.  82 ;  Piatt  v.  Squire,  12  Met.  494;  McKelvey  v.  Truby,  4  Watts  &  S. 
323;  Lee  v.  Munroe,  7  Cranch,  366;  Chester  v.  Greer,  5  Humph.  26; 
Heane  v.  Rogers,  9  Barn.  &  C.  577;  Stafford  v.  Vallou,  17  Vt.  329;  Otis 
f.  Sill,  8  Barb.  102;  Lesley  v.  Johnson,  41  Barb.  359;  Chapman  v.  Ham- 
ilton, 19  Ala.  121 ;  Folk  v.  Beidelman,  6  Watts,  339 ;  Lee  v.  Kirkpatrick,  1 
McCart.  Eq.  (14  N.J.  Eq.)  264;  Wendell  v.  Van  Rensselaer,  1  Joiins.  Ch. 
344:  Schitheimeri;.  Eiseman,  7  Bush,  298;  Storrst-.  Barker,  6  Johns.  Ch. 
166;  10  Am.  Dec.  316;  Berrisford  v.  Mihvard,  2  Atk.  49;  Evans  v.  Bick- 
noll,6  Ves.  174;  Plumb  v.  Fluitt,  2  Anst.  432;  Beckett  v.  Cordley,  1 
Brown  Ch.  853;  Peter  v.  Russell,  1  Eq.  Cas.  Abr.  322;  Broome  v.  Beers, 
6  Conn.  198;  L'Amoureux  v.  Vandenbnrgh,  7  Paige,  316;  32  Am.  Dec. 
635.  And  see,  also.  Bright  v.  Boyd,  1  Story,  478;  Nicholson  i;.  Hooper,  4 
Mylne  &  C.  179;  Chautauque  Co.  Bank  v.  White,  6  Barb.  589;  Carr  v. 
Wallace,  7  Watts,  394;  Pilling  v.  Armitage,  12  Ves.  78;  Crocker  v. 
Crocker,  31  N.  Y.  507;  88  Am.  Dec.  291. 


§  751  TIIH    DOCTRINE    OP   NOTICE.  1018 

conscience  he  ought  to  have  spoken,  he  shall  be  debarred 
from  speaking  when  conscience  requires  him  to  be  si- 
lent."' An  owner  of  land  executed  two  mortgage  deeds 
of  it  on  the  same  day  to  A  and  B,  the  interest  of  A  hav- 
ing afterward  been  assigned  to  C.  D  attached  the  land 
as  the  property  of  B,  and  obtained  a  judgment  against 
him.  He  sent  an  agent  to  C,  who  knew  of  the  judgment, 
to  ascertain  if  his  mortgage  was  entitled  to  priority,  and 
C  responded  that  there  was  no  priority,  that  both  instru- 
ments had  been  executed  at  the  same  time,  and  that  A 
had  given  a*  writing  to  that  effect.  This  representation 
was  not  true,  as  the  mortgage  to  A  had  been  delivered 
first.  But  D  took  a  mortgage  from  B  to  secure  his  claim, 
B  being  insolvent,  and  it  was  held  that  C  was  precluded 
by  these  facts  from  claiming  the  priority  to  which  other- 
wise he  would  have  been  entitled.^  But  there  is  no  fraud 
if  the  holder  of  a  recorded  mortgage  prepare  as  counsel 
a  subsequent  mortgage,  and  maintain  silence  as  to  his 
own.^  If,  under  a  contract  to  purchase  land;  the  nonpay- 
ment of  the  joint  and  several  purchase-money  note  on  a 
day  specified  is  to  work  a  forfeiture,  and  if  two  of  the 
obligors  fraudulently  neglect  to  pay  their  share,  a  forfeit- 
ure thereby  resulting,  and  if,  at  the  same,  time  they  de- 
posit the  money  in  the  hands  of  another  to  avail  himself 
of  the  forfeiture,  a  purchaser  with  notice  can  acquire  no 
rights  superior  to  those  of  the  other  obligors.*  Where  a 
deed  is  duly  signed  and  acknowledged  by  husband  and 
wife,  a  purchaser  has  the  right  to  presume  that  the  wife 
acted  freely  and  with  full  knowledge  of  the  effect  of  the 
deed.  If  he  has  no  knowledge  of  the  fraud  of  others  in 
inducing  her  to  sign,  he  is  not  affected.® 

*  Carr  v.  Wallace,  7  Watts,  394,  400,  per  Eogers,  J.  See,  also,  Epley 
V.  Witherow,  7  Watts,  16;-3 ;  McOormick  v.  McMurtrie,  4  Watts,  195. 

*  Broome  v.  Beers,  6  Conn.  198. 

^  Paine  v.  French,  4  Ohio,  318.  See  Palmer  v.  Palmer,  48  Vt.  69; 
Brinckerhoff  V.  Lansing,  4  Johns.  Ch.  65;  8  Am.  Dec.  538.  See,  also, 
Marston  v.  Brackett,  9  N.  H.  336;  Rice  v.  Dewey,  54  Barb.  455. 

*  Hulett  V.  Fairbanks,  40  Ohio  St.  233. 
'  Pierce  v.  Fort,  60  Tex.  464. 


1019  THE    DOCTRINE    OF    NOTICE.  §  752 

§  752.  Ncg-Iig^ence. — There  may  be  cases  where  a  per- 
son has  acted  so  negligently  as  to  put  it  in  the  power  of 
another  to  induce  a  third  person  to  purchase  in  ignorance 
of  the  existence  of  other  rights,  and  the  party  guilty  of 
such  negligence  may  lose  the  priority  of  his  claim.^ 
Thus,  an  owner  of  land  mortgaged  it  to  A,  and  afterward 
confessed  judgment  in  favor  of  B.  Later,  he  and  his 
wife  executed  a  deed  of  the  land  to  C,  and  on  the  day  fol- 
lowing the  execution  of  the  deed,  A  executed  a  release  to 
the  mortgagor  and  former  owner,  reciting  payment  of  the 
mortgage  debt,  and  some  days  subsequently  C  executed  a 
mortgage  to  A.  The  court  held,  that  although  the  mort- 
gage debt  may  not  have  been  paid,  yet  A  by  releasing 
the  mortgage,  and  reciting  payment  of  the  debt,  forfeited 
the  benefit  of  the  mortgage  lien,  and  that  all  liens  attach- 
ing to  the  property  prior  to  the  date  of  the  second  mort- 
gage were  superior  to  it.^  A  somewhat  hard  case  under 
this  principle  is  where  a  mortgagee  canceled  his  mortgage 
and  took  a  deed  of  the  land,  but  prior  to  the  execution  of 
the  deed,  the  mortgagor  had  executed  a  second  mortgage 
upon  the  land.  Under  these  circumstances  the  decision 
was  that  in  the  absence  of  fraud  the  first  mortgage  would 
not  be  revived,  nor  would  the  second  mortgagee  lose  the 
benefit  of  his  priority  obtained  by  the  cancellation  of 
the  first  mortgage.^ 

'  See  Waldron  v.  Sloper,  1  Drew.  193 ;  Briggs  v.  Jones,  Law  R.  10 
Eq.  92;  Kice  v.  Rice,  2  Drew.  73;  Frazee  v.  Inslee,  2  N.  J.  Eq.  (1 
Green)  239;  Banta  v.  Garmo,  1  Sand.  Ch.  383;  Garland  v.  Harrison,  17 
Mo.  282;  Woollen  v.  Hillen,  9  Gill,  185;  52  Am.  Dec.  690;  Smith  v. 
Brackett,  36  Barb.  571;  Campbell's  Appeal,  29  Pa.  St.  401;  72  Am. 
Dec.  641;  Hewit  v.  Loosemore,  9  Hare,  443;  Neidig  v.  Whiteford,  29 
Md.  178. 

^  Keidig  v.  Whiteford,  29  Md.  178. 

*  Frazee  v.  Inslee,  2  N.  J.  Eq.  (1  Green)  239.  "  In  the  absence  of  any 
proof  of  fraud  by  the  complainant  or  his  agent,"  said  the  Chancellor, 
"  when  the  mortgage  was  canceled  intentionally  and  undcrstaiidiiigly 
by  the  defendant,  and  a  deed  taken  for  the  s;ime  property,  I  cannot,  upon 
any  safe  principle,  revive  the  mortgage,  or  prevent  the  complainant  from 
reaping  the  benefit  of  his  rights  as  a  iirat  mortgagee.  This  would  be 
giving  encouragement  to  negligence,  and  destroy  the  value  of  a  public 
record." 


§§  753-756  THE    DOCTRINE    OF    NOTICE.  1020 

§   763.     Notice   of  riglit  of    wsiy  from   ordinance. —  A 

purchaser  has  notice  of  the  existence  of  a  right  of  way 
over  hind  from  the  fact  that  the  legislature  had  authorized 
the  opening  of  a  street,  the  council  of  the  city  in  which 
the  land  was  situated  had  passed  an  ordinance  directing 
it  to  be  laid  out,  and  a  survey  had  been  made  by  the 
proper  officer,  and  filed  before  the  purchaser  received  his 
deed.' 

§  754.  liaying  down  sidewalk. — Among  the  evidences 
of  ownership  to  be  considered  in  passing  upon  the  ques- 
tion of  notice,  is  the  fact  that  the  party  claiming  title 
had  laid  down  a  sidewalk,  and  it  is  immaterial  whether 
the  sidewalk  is  constructed  by  order  of  the  city  or  not.^ 
It  may  be  that  this  circumstance  alone  taken  by  itself 
would  not  be  sufficient  to  create  a  presumption  of  notice; 
it  is  nevertheless  a  fact  to  be  taken  into  consideration. 
In  most  of  the  cases  that  come  before  the  courts  where 
the  question  of  notice  is  involved,  notice  is  generally 
dependent  upon  a  collection  of  facts  which,  in  the  aggre- 
gate, are  considered  sufficient  to  put  a  party  upon  inquiry. 

§  755.  Deed  from  surviving-  widow^. — A  widow  who 
had  qualified  under  the  statute  in  Texas  as  the  survivor 
of  the  community,  had  sold  land  belonging  to  her  hus- 
band in  his  lifetime,  and  the  purchaser  had  paid  most  of 
the  purchase  price.  It  was  held  that  as  against  one  who 
derived  title  through  an  unrecorded  deed  made  by  the 
husband  in  his  lifetime,  but  who  never  gave  any  notice 
of  his  claim,  the  purchaser  from  the  widow  would  be  pro- 
tected as  an  innocent  purchaser  for  value.' 

§  756.  Notice  of  lien. — It  is  sufficient  to  charge  a 
party  with  notice  of  all  the  particulars  of  a  lien  to  show 
that  he  had  notice  of  the  lien.  If  a  person  takes  a  deed 
of  land  upon  which  there  is  a  mortgage,  of  which  he  had 
notice,  he  is  affected  with  all  the  notice  which  it  is  fair  to 

^  Bailey  v.  Miltenberger,  31  Pa.  St.  37. 
»  Hatch  V.  Bigelow,  39  111.  546.  »  Morris  v.  Meek,  57  Tex.  386, 


1021  THE  DOCTRINE  OF  NOTICE.      §§  757,  758 

presume  he  would  obtain  in  regard  to  the  mortgagee's 
claim  to  a  lieu  if  he  had  made  inquiry  from  the  mort- 
gagee.^ A  party  is  not  autljorized  to  assume  that  an  en- 
cumbrance is  already  known  to  him  when  he  hears  that 
land  is  encumbered.* 

§  757.  Exception  of  encumbrance  in  coyenant. — Where 
a  deed  contains  a  covenant  of  warranty,  an  exception  of  a 
mortgage  from  such  covenant,  although  the  mortgage  may 
not  be  recorded,  charges  the  grantee  in  the  deed  with 
notice.  In  such  case  no  cause  of  action  can  arise  against 
the  grantor  in  favor  of  the  grantee  from  a  foreclosure  and 
sale  of  the  mortgaged  property.'  But  where  a  mortgagor 
inserts  in  the  mortgage  a  covenant  "to  pay  and  discharge 
all  legal  mortgages  and  encumbrances,  of  whatever  nature 
and  description,"  on  the  mortgaged  property,  a  person 
who  acquires  title  by  deed  from  the  mortgagor  is  not  put 
upon  inquiry  as  to  any  mortgages  or  encumbrances  not 
of  record.  And  if  the  mortgage  is  not  entitled  to  regis- 
tration, the  grantee  would  not  be  charged  with  construct- 
ive notice  of  it,  though  it  may  in  fact  be  spread  upon  the 
records.* 

§   768,     Deed    modified    by    annexed    schedule.  ^ — The 

general  words  of  conveyance  in  a  deed  may  be  modified 
by  an  annexed  schedule,  and  a  purchaser  takes  with 
notice  of  the  facts  stated  in  such  schedule.  An  owner  of 
land  had  conveyed  certain  lots  to  a  person  by  a  deed 
absolute   in  form,  but  intended   as  security  for  the  pay- 

»  Martin  v.  Cauble,  72  Ind.  67;  Barr  v.  Kinard,  3  Strob.  73;  Willink 
V.  Morris  Canal  &  Banking  Co.,  4  N.  J.  Eq.  (3  Green)  377;  George  r. 
Kent,  7  Allen,  16;  Pike  v.  Goodnow,  12  Allen,  472;  Taylor  v.  Stibbert, 
2  Ves.  Jr.  437 ;  Jones  v.  Williams,  24  Beav.  47 ;  Gulf  etc.  Ry.  Co.  v.  Gill, 
6  Tex.  Civ.  App.  496;  23  S.  W.  Jlep.  142;  Ijames  v.  Gaither,  93  N.  0. 
358;  Webb  v.  Kobbins,  77  Ala.  176.  See,  also,  Simons  v.  First  Nat.  Bank, 
93  N.  Y.  269;  Wilson  v.  Vaugban,  61  Miss.  472.  But  see  Morris  v.  Mur- 
ray, 82  Ky.  36. 

*  Jones  V.  Williams,  24  Beav.  47. 

*  Morrison  v.  Morrison,  38  Iowa,  73,  80. 

*  Kacouillat  v.  Kene,  32  Cal.  450. 


§  759  THE  DOCTRINE  OF  NOTICE.  1022 

ment  of  certain  notes.  Subsequently  he  conveyed  all  his 
property,  real  and  personal,  without  any  particular 
description  in  the  body  of  the  deed,  but  in  a  schedule 
which  he  annexed  to  the  deed,  the  land  conveyed  as  secu- 
rity for  the  payment  of  the  notes  was  described  as:  "Lots 
of  ground  in  Stuart  Street,  the  title  to  which  is  in  name 
of  David  Dunham,  given  as  collateral  security  to  pay  cer- 
tain notes."  This  deed,  absolute  in  form,  but  in  reality 
a  mortgage,  had  never  been  recorded,  but  the  court  held 
that  the  language  of  the  schedule  was  notice  of  its  exist- 
ence to  the  grantee,  and  that  he  could  not  obtain  a  prior- 
ity by  the  first  registration  of  his  deed.^ 

§   759.     Notice  from  title  deeds  not  between  parties. — 

In  controversies  between  grantor  and  grantee,  for  the 
purpose  of  determining  their  respective  rights,  the  rule 
that  a  grantee  is  chargeable  with  constructive  notice  of 
circumstances  which  came  to  the  knowledge  of  his  at- 
torney or  agent,  for  the  purchase  or  in  the  examination 
of  the  title,  or  that  notice  of  a  deed  is  constructive  notice 
of  its  contents,  does  not  apply.  The  rules  as  to  con- 
structive notice  are  adopted  by  the  courts  for  the  purpose 
of  upholding  the  prior  equitable  rights  of  third  parties 
against  subsequent  purchasers,  who  are  endeavoring  to 
defeat  such  prior  rights.  Therefore,  if  an  owner  of  land, 
misapprehending  his  legal  rights,  sells  the  land  which 
had  been  constructively  dedicated  for  the  purposes  of  a 
public  street,  under  the  terms  of  the  deeds  of  adjoining 
lots  to  prior  purchasers,  and  represents  that  the  lot  will 
not  be  taken  for  a  street  without  payment  to  the  grantee 
of  its  full  value,  but  does  not  communicate  the  facts  upon 
which  are  founded  the  rights  of  the  prior  purchasers,  the 
grantee,  if  the  lot  is  in  fact  worth  nothing  at  the  time  of 
the  purchase,  is  entitled  to  relief  against  a  bond  and 
mortgage  given  for  the  purchase  money.^ 

1  Dunham  v.  Dey,  15  Johns.  555  ;  8  Am.  Dec.  282. 
'  Uiiamplin  v.  Lay  tin,  6  Paige,  189. 


1023  THE    DOCTRINE    OF    NOTICE,  §  760 

PAKT  II. 

POSSESSION. 

§  760.  Possession  as  notice. — It  is  well  established 
both  in  England  and  in  this  country,  that  the  open,  visi- 
ble, notorious,  and  exclusive  possession  of  land,  is  either 
notice  itself  of  the  rights  of  the  party  in  possession,  or  is 
sufficient  to  put  a  person  upon  inquiry  as  to  his  rights.^ 

1  Ha  worth  v.  Taylor,  108  111.  275;  Penny  v.  Watts,  1  Macn.  &  G.  150; 
Holmes  v.  Powell,  8  De  Gex,  M.  &  G.  572;  Hoover  v.  Redmond,  15 
Bradw.  (111.)  427;  Taylor  v.  Stibbert,  2  Ves.  437;  Allen  v.  Anthony,  1 
Mer.  282;  Galley  v.  Ward,  60  N.  H.  331 ;  Rowe  v.  Ream,  105  Pa.  St.  543; 
Lorl's  Appeal,  105  Pa.  St.  451;  Yates  v.  Hurd,  8  West  0.  Rep.  276; 
Peasley  ?;.  McFadden,  9  West  C.  Rep.  715;  Phillips  v.  Costley,  40  Ala. 
486;  Woods  v.  Farmere,  7  Watts,  382;  32  Am.  Dec.  772:  Perkins  v. 
Swank,  43  Miss.  349;  Johnson  v.  Clark,  18  Kan.  157;  Barnes  v.  Union 
School  Township,  91  Ind.  301;  Strickland  v.  Kirk,  51  Miss.  795;  W^ebber 
V.  Taylor,  2  Jones  Eq.  9;  Preston  v.  Nash,  76  Va.  1;  Sears  v.  Miinson, 
23  Iowa,  380;  Rogers  v.  Jones,  8  N.  H.  264;  Cabeen  v.  Breckinridge,  48 
111.  91;  Truesdale  v.  Ford,  37  111.  210;  Dunlap  v.  Wilson,  32  111.  517; 
Baynard  v.  Norris,  5  Gill,  468;  46  Am.  Dec.  647;  Cox  v.  Prater,  67  Ga. 
588;  Moss  v.  Atkinson,  44  Cal.  3;  Killey  v.  Wilson,  33  Cal.  690;  Ma- 
loney  v.  Shattuck,  15  Bradw.  (111.)  44;  Bank  of  Orleans  v.  Flagg,  3  Barb. 
Ch.  316;  Sailor  v.  Hertzog,  4  Whart.  259;  School  District  v.  Taylor,  19 
Kan.  287;  Noyes  v.  Hall,  7  Otto,  34;  Loughbridge  v.  Bowland,  52  Miss. 
516;  McKinzie  v.  Perrill,  15  Ohio  St.  162;  Diehl  v.  Page,  3  N.  J.  Eq.  (2 
Green  Ch.)  143;  Massey  v.  Hubbard,  18  Fla.  688;  Ringold  v.  Bryan,  3 
Md.  Ch.  488;  Hull  v.  Noble,  40  Me.  459;  Tankard  v.  Tankard,  79  N.  C. 
54;  Russell  v.  Sweezey,  22  Mich.  235;  Morrison  v.  Wilson,  13  Cal.  494; 
73  Am.  Dec.  593;  Glidewell  v.  Spaugh,  26  Ind.  319;  Edwards  v.  Thomp- 
son, 71  N.  C.  177;  Warren  v.  Richmond,  53  111.  52;  Keyes  v.  Test,  33  111. 
317;  Reeves  t;.  Ay ers,  38  III.  418;  Baldwin  v.  Johnson,  Saxt.  Ch.  441; 
Westbrook  v.  Gleason,  79  N.  Y.  23;  Farmers'  Loan  &  Trust  Co.  v. 
Maltby,  8  Paige,  361;  Brown  v.  Gaffney,  28  111.  149;  Stagg  v.  Small,  4 
Bradw.  (111.)  192;  Cowen  v.  Loomis,  91  III.  132;  Stafford  v.  Lick,  7  Cal. 
479;  Morrison  v.  March,  4  Minn.  422;  Doyle  v.  Stevens,  4  Mich.  87; 
Havens  v.  Dale,  18  Cal.  359;  Groff  v.  Ramsey,  19  Minn.  44;  Emmons  v. 
Murray,  16  N.  H.  385;  Woodson  v.  McCune,  17  Cal.  298;  Muilins  t;. 
"\\  iinlierly,  50  Tex.  457  ;  Lara  way  v.  Larue,  63  Iowa,  407  ;  Laroe  v.  Gaunt, 
62  Tex.  481;  Moreland  v.  Richardson,  24  Beav.  33;  James  v.  Lichfield, 
LawR.  9  Eq.  51;  Wilson  v.  Hart,  Law  R.  1  Ch.  App.  463;  Taylors. 
Stibbert,  2  Ves.  Jr.  437.  And  see  Pell  v.  McElroy,  36  Cal.  268;  Dauben- 
Bpeck  V.  Piatt,  22  Cal.  330;  Bradley  v.  Snyder,  14  111.  263;  58  Am,  Dec. 
564;  Watkins  v.  Edwards,  23  Tex.  443;  Brown  v.  Volkening,  64  N.  Y.  76; 
Bogue  V.  Williams,  48  III.  371;  Tunson  v.  Chamblin,  88  111.  378;  UhU. 
Rau,  13  Nt-b.  357  ;  Cent.  K.  R.  v.  McCullough,  59  III.  166;  Warren  v.  Rich- 
mond, 53  111.  52;  Smith  v.  Gibson,  15  Minn.  89;  O'Rourke  v.  O'Connor, 


§  7G0  THE    DOCTRINE    OF    NOTICE.  1024 

Where,  therefore,  a  person  is  in  possession  of  land  under 
an  unrecorded  agreement  with  the  owner  for  its  purchase, 
his  possession  is  sufficient  notice  to  put  others  on  inquiry, 
and  if  they  purchase  the  land  from  the  owner,  the  con- 
tract of  purchase  may  be  enforced  against  them.'  "It  is 
the  obvious  design  of  our  recording  laws  to  protect  pur- 
chasers from  latent  legal  or  equitable  titles.  Hence,  its 
operation  in  such  cases  in  giving  notice  to  the  world  -pro- 
tects all  persons  against  fraud  by  the  grantors  wrongfully 
selling  lands  a  second  time.  And,  as  a  general  rule,  when 
the  same  person  has  executed  two  deeds  for  the  same 
land,  the  first  deed  recorded  will  hold  the  title,  unless  the 
junior  grantee  has  purchased  with  notice,  in  which  case 
a  prior  recording  of  his  deed  would  not  avail  against  the 
prior  deed  of  which  he  had  notice.  The  statute  has  only 
given  the  priority  to  the  junior  deed  first  recorded,  when 
the  grantee  has  acted  in  good  faith.  If,  at  the  time  he 
makes  the  purchase,  he  has  notice  of  an  elder  unrecorded 
deed,  he  must  be  regarded  as  acting  in  bad  faith,  and 
neither  principles  of  justice  nor  the  policy  of  the  law  will 
permit  him  to  avail  of  the  priority  of  the  record.  It  then 
follows  that  actual,  visible,  open  possession  being  regarded 
as  notice  equal  to  the  recording  of  the  deed  under  which 
the  grantee  is  in  possession,  the  person  holding  the  first 
conveyance,  and  being  in  open,  visible  possession  before 
the  junior  deed  is  recorded,  must  be  held  to  be  the  owner 
of  the  title,  as  against  the  grantee  in  the  junior  deed."  ^ 
Where  an  owner  of  a  quarter  section  of  land  conveys  by 
deed  one  acre  of  the  tract  to  a  school  district,  the  school 
district  taking  immediate  possession  of  such  acre,  building 
a  schoolhouse  thereon  and  occupying  the  same  for  school 

39  Cal.  442;  Dutton  v.  Warschauer,  21  Oal.  609;  82  Am.  Dec.  765;  Rog- 
ers V.  Hussey,  36  Iowa,  664 ;  Van  Kueren  v.  Cent.  R.  R.  Co.,  38  N.  J.  L. 
(9  Vroom),  165;  Dixon  v.  Lacoste,  1  Smedes  &  M.  107;  Stafford  Bank  v. 
Sprague,  17  Fed.  Rep.  784.  See  Harral  v.  Leverty,  50  Conn.  46;  47  Am. 
Rep.  608;  Rorer  Iron  Co.  v.  Trout,  83  Va.  397 ;  5  Am.  St.  Rep.  285. 

^  Moss  V.  Atkinson,  44  Cal.  3 ;  Hyde  v.  Mangan,  88  Cal.  327,  and  cases 
cited. 

»  Cabeen  r.  Breckenridge,  48  111.  91,93,  per  Walker,  J. 


1025  THE    DOCTRINE    OF    NOTICE.  §  761 

purposes,  but  never  recording  its  deed,  and  subsequently 
the  grantor  mortgages  the  whole  of  the  quarter  section 
to  secure  a  promissory  note,  and  the  mortgage  is  recorded, 
and  another  purchases  the  note  and  mortgage  before  ma- 
turity, having  previously  examined  the  records  and  made 
inquiries  of  the  mortgagor  as  to  the  existence  of  encum- 
brances, but  obtaining  no  notice  concerning  them,  and 
having  no  actual  notice  of  the  claims  of  the  school  dis- 
trict, still,  the  possession  of  the  school  district  is  sufficient 
to  cause  him  to  inquire  of  it  or  of  its  agents  as  to  its  in- 
terests in  the  property.  For  a  failure  to  do  so  the  inter- 
est of  the  purchaser  of  the  note  and  mortgage  becomes 
subordinate  to  the  equities  of  the  school  district.*  Al- 
though the  land  may  be  incorrectly  described  in  the  deed, 
yet  actual  possession  as  against  a  subsequent  purchaser 
with  knowledge,  confers  title.^  Where  an  owner  of  land 
conveys  it  by  deed  of  trust  to  secure  a  debt,  and  a  year 
later  executes  a  contract  of  purchase,  the  vendee  paying 
the  price  and  holding  possession  continuously  and  notori- 
ously without  knowledge  of  the  trust  deed,  which  was  not 
recorded  until  eight  years  after  its  execution;  and  three 
years  after  its  registration  and  eleven  years  after  its  exe- 
cution the  land  is  advertised  for  sale  under  the  trust  deed, 
the  vendee's  rights  are  superior  to  those  of  the  cestui  que 
trust  in  the  trust  deed.^ 

§  761.     Possession  by  grantor — Comments. — Where  a 
grantor  remains,  after  the  execution  of  a  deed,  in  posses- 

»  School  District  v.  Taylor,  19  Kan.  287. 

»  Pike  V.  Robertson,  79  Mo.  615 ;  White  v.  White,  105  III.  313.  And 
see,  also,  Warbritton  v.  Demorett,  129  Ind.  346.  But  see,  where  posaes- 
Bion  was  held  insufficient,  Lanford  v.  Weeks,  38  Kan.  319 ;  5  Am.  at 
Rep.  748. 

^  Preston  v.  Nash,  76  Va.  1.  Where  a  grantor  held  title  by  a  deed 
invalid  in  equity,  and  when  he  was  never  in  possession,  and  others  had 
controlled  the  property  for  many  years,  when  an  examination  would  have 
disclosed  conveyances  inconsistent  with  the  full  validity  of  the  deed 
under  which  the  grantor  claimed,  and  when  the  purchase  price  was  grossly 
inadequate,  a  purchaser  may  be  charged  with  notice  of  the  invalidity  of 
his  grantor's  deed:  Knapp  v.  Bailey,  79  Me.  195;  1  Am.  St.  Rep.  295. 
i>E£Ds,  Vol.  1L  — G5 


§  702  THE  DOCTRINE  OF  NOTICE.  1026 

sion  of  the  land  which  he  has  conveyed,  the  question  of 
whether  his  possession  under  these  circumstances  is  such 
that  a  person  contemplating  a  purchase  or  acquiring 
some  interest  in  the  land  is  compelled  to  take  notice  of 
the  rights  of  such  grantor,  which  he  may  have  reserved, 
or  which  may  exist  dehors  his  deed,  is  a  question  on  which 
the  authorities  are  not  agreed.  By  one  class  of  decisions 
the  rule  laid  down  is  that  a  grantor  remaining  in  posses- 
sion is  entitled  to  protection  to  whatever  rights  he  may 
have  by  virtue  of  the  notice  thereof  given  by  his  posses- 
sion, in  the  same  manner,  and  to  the  same  extent,  that  any 
other  person  would  be.  While,  on  the  other  hand,  by 
another  class  of  decisions,  the  rule  is  said  to  be  that  a 
person  finding  that  the  one  in  possession  has  conveyed 
away  his  rights  by  a  deed  duly  recorded,  is  not  obliged 
to  go  further  and  inquire  whether  the  grantor  has  not 
some  right  or  interest  not  disclosed  by  the  record,  and  to 
which  his  possession  may  be  referred. 

§  762.  View  that  possession  is  notice  of  grantor's 
rights. — It  is  said  by  the  cases  holding  that  his  possession 
is  notice,  that  where  the  grantor  continues  in  the  open 
and  adverse  possession  of  land  after  the  formal  execution 
of  a  deed,  this  fact  is  in  conflict  with  the  legal  effect  of 
his  deed.  It  is  evidence  that  he  still  retains  some  inter- 
est in  the  land  which  by  the  record  he  has  absolutely 
conveyed.  A  purchaser  is  put  upon  inquiry,  and  is  sub- 
ject to  the  same  rules  as  would  govern  if  the  party  in  pos- 
session was  a  stranger  to  the  record.  Accordingly,  where 
A,  an  owner  of  land,  conveyed  it  by  deed  to  B,  which  was 
immediately  recorded,  A  not  receiving  any  portion  of  the 
purchase  money,  although  the  deed  recited  its  payment, 
and  B  subsequently  conveyed  the  land  to  C,  but  A  re- 
mained in  possession  after  the  execution  of  his  deed,  and 
was  in  possession  at  the  time  B's  deed  was  executed,  the 
latter  being  insolvent  when  he  executed  his  conveyance, 
it  was  held  in  an  action  brought  by  A  to  enforce  a  vendor's 
lien  for  the  purchase  money,  that  his  continued  posses- 


1027  THE  DOCTRINE  OF  NOTICE.  §  762 

sion  was  sufficient  to  impart  notice  of  liis  rights.*  Where 
A  conveyed  his  farm  to  B  by  a  deed  duly  registered,  at 
the  same  time  taking  back  a  conveyance  to  himself  and 

1  Pell  V.  McElroy,  36  Cal.  26S;  Illinois  Cent.  R.  R.  Co.  v.  McCullough, 
59  111.  166;  Wright  v.  Bates,  13  Vt.  341;  Webster  v.  Maddox,  6  Me.  256: 
Metropolitan  Bank  v.  Godfrey,  23  111.  579;  McKecknie  v.  Hoskins,  23 
Me.  230;  Grimstone  v.  Carter,  3  Paige,  421 ;  24  Am.  Dec.  230;  Hopkins 
V.  Garrard,  7  Mon.  B.  312;  Hansen  c.  Berthelson,  19  Neb.  433;  Lamoreu 
V.  Meyers,  68  Wis.  31 ;  60  Am.  Rep.  831 ;  Stevens  v.  Castel,  63  Mich.  Ill ; 
Davis  V.  Demming,  12  W.  Va.  246;  Daubenspeck  v.  Piatt,  22  Cal.  330; 
McLaughlin  v.  Sheplierd,  32  Me.  143;  52  Am.  Dec.  646;  Boggs  v.  Ander- 
son, 50  Me.  161;  White  v.  White,  89  111.  4t)0;  Ford  v.  Marcall,  107  111. 
136;  New  v.  Wheaton,  24  Minn.  406;  Turman  v.  Bell,  54  Ark.  273;  26 
Am.  St.  Rep.  35.  See  Eylar  v.  Eylar,  60  Tex.  315.  In  Pell  v.  McElroy, 
supra,  Mr.  Justice  Sprague,  in  delivering  the  opinion  of  the  court,  said 
(p.  273):  "The  simple,  independent  fact  of  possession  is  siifBcient  to 
raise  a  presumption  of  interest  in  the  premises  on  behalf  of  the  occupant. 
And  we  can  discover  no  just  or  rational  ground  for  giving  to  this  fact 
less  significance  as  notice  to  a  party  purchasing  the  legal  title  from  one 
not  in  possession,  in  consequence  of  the  fact  that  such  occupant  had  by 
deed  divested  himself  of  the  legal  title.  For  instance,  should  a  vendor 
of  lands  make  an  absolute  deed  which  is  put  of  record,  and  immediately 
take  from  the  grantee  a  mortgage  upon  the  same  lands  to  secure  a  part 
or  all  the  purchase  money,  by  the  terms  of  which  mortgage  he  is  to  re- 
tain the  possession  until  the  entire  purchase  money  is  paid,  and  such 
vendor  and  mortgagee  should  continue  in  the  exclusive  possession  with 
his  mortg.age  unrecorded,  it  is  very  clear  that,  under  the  decisions  here- 
totore  referred  to,  a  party  purchasing  of  his  vendee  while  such  a  posses- 
sion was  in  the  vtndor  would  take  the  premises  with  presumptive  notice 
of  the  equities  of  the  occupant.  So,  if  a  vendor  of  land  make  an  absolute 
deed  which  is  put  of  record,  and  take  a  note  for  the  purchase  money, 
and  immediately  receive  from  his  vendee  a  reconveyance  by  absolute 
deed  not  put  of  record,  which,  by  a  verbal  agreement  of  the  parties,  he 
is  to  retain,  with  the  possession,  as  security  for  the  payment  of  the  pur- 
chase money,  while  such  possession  continued,  it  manifestly  would  oper- 
ate as  presumptive  notice  of  his  equit  es  to  purchasers  of  his  grantees. 
So,  in  this  case,  if  before  or  at  the  maturity  of  the  note  given  by  McElroy 
for  the  purchase  money,  he  (McElroy)  had  reconveyed  the  land  to  Pell 
in  consideration  of  the  surrender  of  his  notes,  and  then,  before  Pell  h;id 
put  tlie  deed  of  record,  and  while  he  was  still  in  the  exclusive  po'-session 
with  ilia  deed  in  his  pocket,  McElroy  had  sold  and  conveyed  to  defend- 
ants Kelly  and  Hearst,  it  would  hardly  be  contended  that  they  could  be 
protected  as  purchasers  in  good  faith  in  a  court  of  equity.  An  absolute 
deed  divests  the  grantor  not  only  of  his  legal  title,  but  right  of  possession ; 
and  when  such  grantor  is  found  in  the  exclusive  possession  of  the  granted 
premises  long  after  the  delivery  of  his  deed,  here  is  a  fact  antagonistic 
to  the  fact  and  le^al  effect  of  the  deed;  and  we  cannot  appreciate  the 
justice,  sound  reason,  or  policy  of  a  rule  which  would  authorize  a  subse- 


§  7G3  THE    DOCTRINE    OF    NOTICE.  1028 

two  minor  sons,  the  latter  deed  not  being  recorded,  but  A 
remaining  in  possession  as  before,  it  was  held  this  posses- 
sion was  sufficient  to  give  notice  of  the  second  deed/  If 
a  vendor  of  land  leaves  a  deed,  after  execution,  in  the 
hands  of  the  officer  taking  the  acknowledgment,  for  deliv- 
ery to  a  third  person,  to  hold  as  an  escrow  until  the  pay- 
ment of  the  purchase  money,  but  the  deed,  without 
delivery  to  the  depositary,  is  placed  upon  record  without 
the  grantor's  knowledge  or  consent,  he  remaining  in  pos- 
session of  the  land,  a  subsequent  purchaser  from  the 
grantee  will  hold  subject  to  the  equities  of  the  grantor,^ 

§  763.  Opposite  view  —  Possession  not  notice  of 
grantor's  rig-hts.  —  On  the  other  hand,  by  many  authori- 
ties, it  is  held  that  while  possession  by  a  stranger  is  notice 
of  any  claim  he  may  have  to  the  property,  a  distinction 

quent  purchaser,  while  such  fact  of  possession  continues,  to  give  con- 
trolling prominence  to  the  fact  and  legal  effect  of  the  deed,  in  utter 
disregard  of  the  other  notorious,  prominent,  antagonistic  fact  of  exclusive 
possession  in  the  original  grantor.  He  cannot  be  regarded  a  purchaser 
■in  good  faith  who  negligently  or  willfully  closes  his  eyes  to  visible  perti- 
nent facts,  indicating  adverse  interest  in  or  encumbrances  upon  the  es- 
tate he  seeks  to  acquire,  and  indulges  in  possibilities  or  probabilities, 
and  acts  upon  doubtful  presumptions,  when  by  the  exercise  of  prudent, 
reasonable  diligence  he  could  fully  inform  himself  of  the  real  facts  of 
the  case." 

'  Webster  v.  Maddox,  6  Me.  (6  Greenl.)  256;  Turman  v.  Bell,  54  Ark. 
273 ;  26  Am.  St.  Rep.  35.  Creditors  of  the  grantee  are  bound  as  effect- 
ually by  notice  afforded  by  possession  of  the  grantor  as  they  are  by  pos- 
session by  a  stranger  to  the  title :  Groff  v.  State  Bank,  50  Minn.  234;  36 
Am.  St.  Rep.  640 ;  citing  sees.  761-765  of  text. 

2  Illinois  Central  R.  R.  Co.  v.  McCullough,  59  111.  166.  In  Grimstone 
V.  Carter,  3  Paige,  421,  439;  24  Am.  Dec.  230,  the  Chancellor  says: 
"  This  is  undoubtedly  a  hard  case  for  the  purchasers  who  supposed  they 
were  getting  a  good  title.  But  as  the  complainant  was  not  aware  of  the 
negotiation  for  the  purchase  of  the  property,  and  therefore  had  no  op- 
portunity to  apprise  them  of  his  equitable  claim  to  a  reconveyance  of  the 
north  half  of  the  lot,  it  would  be  equally  hard  to  deprive  him  of  hia 
property  without  consideration.  Seymour  and  Welles  were  informed 
he  was  in  possession,  which,  by  the  settled  law  of  the  land,  was  sufficient 
to  put  them  on  inquiry,  and  to  deprive  them  of  the  defense  of  bona  fide 
purchasers  without  notice  of  his  rights.  And  they,  in  the  language  of 
Lord  Eldon,  having  neglected  to  take  the  obvious  precaution  of  inquir- 
ing as  io  the  nature  and  extent  of  a  tenant's  interest  in  the  property, 
must  suffer  the  consequences  of  their  neglect." 


1029  THE    DOCTRINE    OF    NOTICE.  §  763 

is  to  be  noted  between  that  case  and  the  case  of  a  grantor 
remaining  in  possession  after  the  execution  of  a  deed. 
In  a  case  in  New  Jersey,  the  court  wliile  admitting  the 
full  force  of  the  general  rule  as  to  the  effect  of  notice 
gi^'en  by  possession,  declares  that  "this  rule  does  not  ap- 
ply to  a  vendor  remaining  in  possession,  so  as  to  require 
a  purchaser  from  his  grantee  to  inquire  whether  he  has 
reserved  any  interest  in  the  land  conveyed.  So  far  as 
the  purchaser  is  concerned,  the  vendor's  deed  is  conclu- 
sive upon  that  subject;  having  declared,  by  his  convey- 
ance, that  he  makes  no  reservation,  he  is  estopped  from 
setting  up  any  secret  arrangement  by  which  his  grant  is 
impaired.  The  well-settled  rule  applies  to  this  case,  that 
a  party  is  estopped  from  impeaching  or  contradicting  his 
own  deed,  or  denying  that  he  granted  the  premises  which 
his  deed  purports  to  convey."^  In  a  case  in  Michigan, 
Mr.  Justice  Christiancy,  in  delivering  the  opinion  of  the 
court,  after  adverting  to  the  fact  that  open  and  peaceable 
possession  is  notice  to  the  world  of  the  claim  under  which 
the  party  in  possession  holds,  thus  continues:  "But  the 
object  of  the  law  in  holding  such  possession  constructive 
notice,  where  it  has  been  so  held,  is  to  protect  the  pos- 
sessor from  the  acts  of  others  who  do  not  derive  their 
title  from  him;  not  to  protect  him  against  his  oivn  acts, 
and  especially  against  his  own  deed.  If  a  party  executes 
and  delivers  to  another  a  solemn  deed  of  conveyance  of 
the  land  itself,  and  suffers  that  deed  to  go  upon  record, 
he  says  to  all  the  world,  '  whatever  right  I  have,  or  mav 
have  claimed  to  have  in  this  land,  I  have  conveyed  to 
my  grantee;  and  though  I  am  yet  in  possession,  it  is  for 
a  temporary  purpose,  without  claim  of  right,  and  merely 
as  a  tenant  at  sufferance  to  my  grantee.'  This  is  the 
natural  inference  to  be  drawn  from  the  recorded  deed, 
and  in  the  minds  of  all  men,  would  be  calculated  to  dis- 
pense with  the  necessity  of  further  inquiry  upon  the 
point.     All   presumption   of  right   or   claim    of    right    is 

'  Van  Keuren  v.  Central  R.  R.  Co.  of  New  Jersey,   38  N.  J.  L.  (9 
Vroom)  1G5,  167,  per  Van  Syckel,  J. 


§  7Gi  THE  DOCTRINE  OF  NOTICE.  1030 

rebutted  by  Ins  own  act  and  deed.  One  of  the  main  ob- 
jects of  the  registry  law  would  be  defeated  by  any  other 
rule."^ 

§  7(M.  Comments. — It  is  perhaps  to  be  regretted  that 
courts  should  hold  parties  bound  by  any  other  notice  than 
that  furnished  by  the  record.  Land  is  sold  in  many  in- 
stances that  the  party  purchasing  has  never  seen.  The 
purchaser  relies  upon  the  records  for  the  purpose  of  ascer- 
taining his  vendor's  title,  and  generally  considers  himself 
safe  in  purchasing  when  the  records  show  that  his  ven- 
dor's title  is  indefeasible.  But  it  may  happen  that  the 
one  apparently  possessing  the  title  has  no  title  whatever, 
or  has  a  title  subject  to  liens  and  encumbrances  not  dis- 
closed by  the  record,  but  manifested  by  a  possession  suffi- 
cient to  affect  subsequent  purchasers  with  notice.  Inas- 
much as  our  law  allows  possession  to  have  the  effect 
of  notice,  there  seems  to  us  no  good  reason  for  draw- 
ing a  distinction  between  cases  where  a  stranger  to  the 
title  has  possession,  and  where  the  grantor  remains  in  pos- 
session after  the  execution  of  his  deed,  under  some  title 
or  claim  not  shown   by  the  records.     The  possession  in 

'  Bloomer  v.  Henderson,  8  Mich.  395,  405 ;  77  Am.  Dec.  453,  and  cases 
cited.  See,  also,  Woods  v.  Farmer,  7  Watts,  382;  32  Am.  Dec.  772; 
Scott  V.  Gallagher,  14  Serg.  &  R.  333;  16  Am.  Dec.  508;  Newhall  «. 
Pierce,  5  Pick.  450;  Rice  v.  Rice,  2  Drew.  1 ;  Whiter.  Wakefield,  7  Sim. 
401 ;  Muir  v.  Jolly,  26  Beav.  143 ;  Groton  Sav.  Bank  v.  Beatty,  30  N.  J. 
Eq.  133;  Quick  v.  Milligan,  108  Ind.  419;  58  Am.  Rep.  49;  Eylar 
V.  Eylar,  60  Tex.  319;  Hoffman  v.  Blume,  64  Tex.  334;  Koon  v.  Tram- 
mel, 71  Iowa,  132;  Abbott  v.  Gregory,  39  Mich.  68;  Humphrey  v. 
riurd,  29  Mich.  44;  May  v.  Sturdivant,  75  Iowa,  116;  39  Mo.  Rep.  221; 
9  Am.  St.  Rep.  463;  Crassen  v.  Swovehuid,  22  Ind.  427;  Sprague  v. 
White,  73  Iowa,  670;  35  N.  W.  Rep.  751;  Dodge  v.  Davis,  85  Iowa, 
77;  52  N.  W.  Rep.  2;  Tuttle  v.  Churchman,  74  Ind.  311;  Bell  v.  Twi- 
light, 18  N.  H.  159;  45  Am.  Dec.  367;  Mateskey  u.  Feldman,  75  Wis. 
103;  43  N.  W.  Rep.  703;  Schwallback  v.  Milwaukee  etc.  Ry.  Co., 
69  Wis.  292;  2  Am.  St.  Rep.  740;  Denton  v.  White,  26  Wis.  769; 
Hurt  V,  Cooper,  63  Tex.  362;  Love  v.  Breed  love,  75  Tex.  649;  13  S.  W. 
Rep.  222;  Hafter  v.  Strange,  65  Miss.  323;  7  Am.  St.  Rep.  659;  Seymour 
V.  McKinstrey,  106  N.  Y.  230;  Burt  v.  Baldwin,  8  Neb.  487;  Van  Keuren 
V.  Central  R.  R.  Co.,  38  N.  J.  L.  165.  And  see  New  York  Life  Ins.  Co.  v. 
Cutler,  3  Sand.  Ch.  176;  Cook  v.  Travis,  20  N.  Y.  400;  Reed  v.  Gannon, 
50  N.  Y.  345;  Dawson  v,  Daubury  Bank,  15  Mich.  489. 


1031  THE    DOCTRINE    OF    NOTICE.  §  764 

either  case  is  the  same.  In  either  case,  it  is  a  fact  in  con- 
flict with  the  record  title.  If  possession  by  a  stranger  is 
sufficient  to  make  it  obligatory  upon  purchasers  to  ascer- 
tain his  rights,  a  possession  by  the  grantor  himself,  after 
the  execution  of  his  deed,  is  a  circumstance  as  much  en- 
titled to  consideration,  and  as  apt  to  cause  inquiry.  This 
much  may  be  admitted.  But  it  is  said  that  the  grantor 
is  estopped  by  the  execution  of  his  deed.  We  cannot  see 
why  the  doctrine  of  estoppel  does  not  apply  with  as  much 
force  to  one  case  as  to  the  other.  A  stranger  who  neglects 
to  have  recorded  the  instrument  under  which  he  claims 
title  or  right  is  as  guilty  of  negligence  as  a  grantor  who 
fails  to  record  the  instrument  by  which  his  rights  are 
conferred  or  secured.  The  grantor  is  not  seeking  to  de- 
feat his  deed.  He,  of  course,  is  estopped  from  assailing 
his  own  deed.  But,  when  he  remains  in  possession,  he 
claims  some  right  dehors  his  deed.  It  is  true  that,  in 
many  instances,  that  right  could  have  been  reserved  in 
his  deed.  But  it  is  true  in  all  instances  that  his  rights 
either  could  have  been  conferred,  if  they  are  not,  by  a 
separate  instrument.  In  a  case  where  an  owner  of  land 
conveys  it  by  deed  which  is  recorded,  and  takes  a  mort- 
gage as  security  for  the  payment  of  the  purchase  money, 
or  takes  an  absolute  deed  intended  as  a  mortgage,  which, 
by  the  agreement  of  the  parties  or  the  grantor's  neglect, 
is  not  recorded,  and  it  is  agreed  that  the  grantor  is  to 
remain  in  possession  until  the  purchase  money  is  paid, 
the  question  of  the  grantor's  estoppel  by  his  deed,  it  seems 
to  us,  is  not  involved.  The  grantor  admits  the  execution 
of  his  deed,  and  concedes  that  it  is  as  operative  in  all 
respects  as  it  purports  to  be.  But  he  has  the  same  right 
as  anyone  else  to  acquire,  subsequently,  either  a  legal  or 
an  equitable  title  from  his  grantee.  If  he  does  so,  and 
does  not  ])ut  the  instrument  giving  such  title  on  record, 
he  occupies  exactly  the  same  position  as  a  purchaser  who 
acquires  a  title  by  deed  which  he  fails  to  record.  The 
negligence  in  one  case  is  as  great  as  in  the  other.  Neither 
is  attempting  to  defeat  any  recorded  deed.     There  is  no 


§  765  THE    DOCTRINE    OF    NOTICE.  1032 

question  of  estoppel,  because  the  full  effect  of  the  recorded 
conveyances  is  conceded.  It  seems  to  us  that,  in  these 
cases,  the  effect  of  a  possession  by  a  stranger  and  by  a 
grantor  ought  to  be  similar.  In  either  case,  the  record 
shows  that  the  title  is  vested  in  one  other  than  the  party 
in  possession.  In  either  case,  the  possession  is  visible; 
is  of  a  character  of  which  one  viewing  the  premises  must 
be  cognizant.  In  either  case,  the  possession  may  be 
under  permission  of  the  owner  as  he  appears  of  record, 
without  any  right  being  held  by  the  party  in  possession, 
or,  in  either  case,  the  party  in  possession  may  claim  un- 
der an  adverse  title.  If  possession  is  protection  to  one, 
it  should  be  to  the  other.  Whatever  can  be  said  as  to 
the  danger  of  allowing  a  grantor,  who  remains  in  pos- 
session after  the  execution  of  his  deed,  to  claim  a  title 
in  conflict  with  the  record  title,  can  be  said  with  equal 
force  against  allowing  possession  by  anyone,  under  any 
circumstances,  to  affect  subsequent  purchasers  and  en- 
cumbrancers with  notice.^ 

§  765.  Absolute  deed  and  grantor's  possession  under 
unrecorded  defeasance. — It  is  held  in  accordance  with  the 
view  that  a  grantor's  possession  affords  notice  of  his  rights, 
that  where  a  person  conveys  land  by  a  deed  absolute  in 
form,  which  is  recorded,  taking  back  a  defeasance  which 
is  not  recorded,  constituting  the  transaction  a  mortgage, 
the  possession  and  actual  occupation  of  the  land  by  the 
mortgagor  are  notice  of  his  title  to  a  purchaser  from  the 
mortgagee.^  But  in  Indiana,  it  is  held  on  the  other  hand 
that  such  possession  is  not  notice  of  an  unrecorded  defeas- 
ance,''^ and  decisions  in  Massachusetts  are  to  the  same  ef- 
fect.''    As  already  stated,  we  are  of  opinion  that  the  grantor 

'  In  Groff  V.  State  Bank.  50  Minn.  234,  36  Am.  St.  Eep.  640,  §§  761- 
765,  were  cited  as  authority  for  the  views  expressed  by  the  court. 

2  Daubenspeck-y.  Piatt,  22  Cal.  330;  Pell  t;.  McEIroy,  36  Cal.  668 ;  New 
V.  Wheaton,  24  Minn.  406. 

*  Crassen  v.  Swoveland,  22  Ind.  427. 

*  Hennessy  v.  Andrews,  6  Gush.  170;  Newhall  v.  Pierce,  5  Pick.  450; 
Newhall  V.  Burt,  7  Pick.  156.  And  see  Kunkle  v.  Wolfersberger,  6  Watts, 
126;  Corpman  v.  Baccastow,  84  Pa.  St.  363;  Brophy  Mining  Co.  v.  Brophy 


1033  THE    DOCTRINE    OF    NOTICE.  §  765 

should  be  as  much  entitled  to  claim  the  benefit  of  notice 
arising  from  his  open  possession  as  anyone  else.  It  has 
been  held  in  New  York,  that  where  a  judgment  debtor 
continues  in  possession  of  the  land  which  has  been  sold 
under  execution  against  him,  his  possession,  it  may  be 
presumed,  is  under  the  title  of  the  purchaser.^  "  It  is 
quite  true,  generally,"  said  Comstock,  J.,  "that  the  law 
regards  the  actual  occupancy  of  land  as  equivalent  to  no- 
tice to  all  persons  dealing  with  the  title,  of  the  claims  of 
the  occupant.  But  this  is  not  an  absolute  proposition 
which  is  to  be  taken  as  true  in  all  possible  relations.  The 
circumstances  known  may  be  such  that  the  occupancy 
will  not  suggest  to  a  purchaser  an  inquiry  into  the  title 
or  claim  under  which  it  may  be  held;  and  when  the  in- 
quiry may  be  omitted  in  good  faith,  and  the  exercise  of 
ordinary  prudence,  no  one  is  bound  to  make  it.  Posses- 
sion out  of  the  vendor  and  actually  in  another  person, 
only  suggests  an  inquiry  into  the  claim  of  the  latter. 
Ordinarily,  that  inquiry  should  be  made,  because  it 
evinces  bad  faith  or  gross  neglect  not  to  make  it.  But 
the  question  in  such  cases  is  one  of  actual  notice,  and 
such  notice  will  be  imputed  to  a  purchaser  only  where  it 
is  a  reasonable  and  just  inference  from  the  visible  facts. 
He  cannot  willfully  close  his  eyes  and  then  allege  good 
faith;  nor  can  he  pause  in  the  examination  where  the 
facts  made  knowh  to  him  plainly  suggest  a  further  in- 
quiry to  be  pursued.  The  adjudged  cases  which  have 
been  the  most  carefully  considered  do  not  carry  the  doc- 
trine of  notice  as  implied  or  inferred  from  circumstances 
further  than  is  here  indicated."^  Possession  of  mort- 
gaged premises  is  notice  of  the  equities  of  the  occupant 
to  a  person  who  purchases  the  same  at  a  trustee's  sale 
under  a   power  of  sale.     Under  these   circumstances,  the 

&  Dale  G.  &  S.  Co.,  15  Nev.  101;  Parker  v.  Osjiood,  3  Allen,  487;  Lamb 
V.  Pierce,  113  Mass.  73;  Pomroy  v.  Stevens,  U  Met.  244;  Mara  v.  Pierce, 
9  Gray,  306;  Dooley  v.  Wolcott,  4  Allen,  407;  Groton  Savings  Bank  v. 
Batty,  20  N.  J.  Eq.  (3  Stewt.)  126. 

1  Cook  V.  Travis,  20  N.  Y.  400. 

>  Cook  V.  Travis,  20  N.  Y.  402,  403. 


§§  7GG,  7G7  TIIIC    DOCTRINE    OP    NOTICE.  1034 

purchaser  at  the  trustee's  sale  will  acquire  a  title  subject 
to  any  equitable  rights  of  the  party  in  possession  to  avoid 
the  sale.^  Where  a  mortgagor  continues  in  possession 
after  a  foreclosure  sale,  it  is  held  in  Michigan  that  his 
possession  is  not  constructive  notice  of  any  title  or  inter- 
est subsequently  acquired  by  him  not  appearing  of  record.^ 
If  two  persons  buy  a  tract  of  land,  each  being  equally 
interested  and  each  taking  his  part  of  the  land,  a  decree, 
if  no  unfairness  in  the  division  is  shown,  may  be  entered 
after  the  death  of  one  of  the  parties  confirming  such  par- 
tition.* 

§  766.  Parol  evidence  to  show  grantor's  rig-ht  to  pos- 
session.—  Notwithstanding  the  general  proposition  that  a 
reservation  of  an  interest  in  real  estate  can  be  made  only 
by  deed,  yet  in  an  action  for  use  and  occupation,  parol 
evidence  is  admissible  to  show  an  agreement  between 
the  parties,  that  the  grantor  might  continue  to  use  the 
premises.^  The  effect  of  such  evidence  is  not  to  contra- 
dict the  deed,  but  to  explain  what  was  the  actual  consid- 
eration, and  parol  evidence  for  this  purpose  is  admissible.' 

§   767.      Absolute  deed  with  mortg-ag-e  for  support. — A 

husband  and  wife  who  had  been  for  several  years  in  the 
occupation  of  a  farm,  conveyed  it  to  their  son  and  took 
back  from  him  a  mortgage  conditioned  for  their  support. 
They  omitted,  however,  to  have  the  mortgage  recorded. 
The  mortgagees  continued  in  the  possession  of  the  farm, 
they  and  the  son  forming  one  family,  and  all  aiding  in 
and  contributing  to  its  support.  The  son,  some  years 
after  the  execution  of  this  mortgage,  executed  another  to 
a  third  person.  The  latter  instrument  was  properly 
recorded.  Under  these  circumstances,  the  court  held 
that  the  second  mortgagee  must  be  considered  as  having 

^  Clevinger  v.  Boss,  109  111.  349. 

*  Dawson  v.  Danbury  Bank,  15  Mich.  489. 
"  Irwin  V.  Dyke,  109  111.  528. 

*  Tlie  Aull  Savings  Bank  v.  Aull,  80  Mo.  199. 

*  The  Aull  Savings  Bank  v.  Aull,  80  Mo.  199. 


1035  THE    DOCTRINE    OF    NOTICE.  §   768 

the  rights  of  the  first  mortgagees.^  Where  an  aged  woman 
executed  a  deed  to  her  daughter,  reciting  as  the  consider- 
ation ''five  dollars  and  the  faithful  performance  of  a  cer- 
tain agreement,"  the  agreement  being  by  parol  that  the 
daughter  should  support  the  mother  for  her  life,  and  the 
daughter  subsequently  married,  and  on  the  same  consid- 
eration conveyed  the  land  to  her  husband,  to  whom  the 
mother  afterward  executed  a  quitclaim  deed  for  the  pur- 
pose, as  the  deed  expressed,  of  correcting  a  misnomer, 
and  tlie  husband  then  mortgaged  the  land  to  a  person 
who  had  knowledge  of  the  quitclaim  deed,  it  was  held 
that  the  mortgagee  was  affected  with  notice  of  the  agree- 
ment, which  might  have  been  ascertained  by  inquiry.'' 
But  it  is  said  that  possession  by  husband  and  wife  together 
will  impart  notice  of  her  equities  as  against  all  persons  not 
claiming  under  the  husband.^ 

§  768.  Residence  of  husband  and  wife.  —  A  pur- 
chaser is  not  put  upon  inquiry,  it  is  held,  to  ascertain  the 
rights  of  a  third  person,  from  whom  the  husband  to  cover 
his  own  fraud  took  a  lease  of  land  to  which  his  wife  held 
the  record  title,  when  the  existence  of  such  lease  is  un- 
known to  the  purchaser.^  Nor  is  notice  of  any  claim  of 
interest  in  the  land  by  the  wife  given  by  the  fact  that  the 
husband  and  wife  jointly  reside  on  the  land.^ 

^  Boggs  V.  Anderson,  50  Me.  161.  See  Harrison  v.  New  Jersey  etc. 
Transi)ortation  Co.,  19  N,  J.  Eq.  (4  Green,  C.  E.)  488. 

*  Dailey  v.  Kastell,  56  Wis.  444. 

*  Iowa  Loan  &  Trust  Co.  v.  King,  58  Iowa,  598. 

*  Fassett  v.  Smitli,  23  N.  Y.  252. 

'  Neal  V.  Perkerson,  61  Ga.  345.  But  see  Branson  v.  Brooks,  68  Ala. 
248.  A  person  in  Utah  occupied  certain  premises  with  his  wife  and  A,  a 
polytiamous  wife,  who  remained  with  him  under  a  secret  agreement  that 
she  should  have  a  half  interest  in  the  property,  and  he  received  a  deed 
for  the  land,  without  making  known  his  agreement  with  A.  Subse- 
quently third  parties  acquired  his  interest,  paying  a  valuable  considera- 
tion and  having  no  notice  of  A's  equities.  As  against  these  parties  it 
was  held  that  A  had  no  claim.  The  occupation  of  the  premises  by  her 
in  the  manner  stated  i^ave  no  constructive  notice  of  her  rights :  Townsend 
V.  Little,  109  U.  S.  500. 


§  7G9  THE    DOCTRINE    OF    NOTICE.  103G 

§  769.  Character  of  possession. — The  possession  to 
have  the  effect  of  notice  must  be  of  that  character  that 
the  attention  of  a  purchaser  is  at  once  called  to  it.  It 
must  be  open,  distinct,  exclusive,  and  unequivocal.  If 
the  land  is  used  by  the  grantee  and  others  for  pasture, 
and  there  are  no  buildings  upon  it,  such  possession  is  not 
of  that  visible,  notorious,  and  exclusive  character  as 
amounts  to  constructive  notice  of  ownership.^  If  wood  is 
occasionally  cut  under  circumstances  which  might  be  re- 
garded as  so  many  trespasses  with  as  much  probability  as 
acts  of  ownership,  such  fact  does  not  make  the  possession 
notice.''^  "The  character  of  the  possession  which  is  suffi- 
cient to  put  a  person  upon  inquiry,  and  which  will  be 
equivalent  to  actual  notice  of  rights  or  equities  in  persons 
other  than  those  who  have  a  title  upon  record,  is  very 
well  established  by  an  unbroken  current  of  authority. 
The  possession  and  occupation  must  be  actual,  open,  and 
visible;  it  must  not  be  equivocal,  occasional,  or  for  a  spe- 
cial or  temporary  purpose;  neither  must  it  be  consistent 
with  the  title  of  the  apparent  owner  by  the  record."^    An 

'  Coleman  v.  Barklew,  3  Dutch.  357,  and  cases  cited ;  Taylor  v.  Cen- 
tral Pac.  R.  R.  Co., 8  West  C.  Rep.  22;  67  Cal.  615, 

'  Holmes  v.  Stout,  2  Stockt.  Ch.  (10  N.  J.)  419. 

=  Brown  v.  Volkening,  64  N.  Y.  76,  82,  per  Allen,  J;  Elliott  v.  Lane, 
82  Iowa,  484;  31  Am.  St.  Rep.  504;  Thomas  v.  Kennedy,  24  Iowa,  397; 
95  Am.  Dec.  740;  Iowa  Loan  and  Trust  Co.  v.  King,  58  Iowa,  598;  Lind- 
ley  V.  Martindale,  78  Iowa,  380  ;  Kendall  v.  Lawrence,  22  Pick.  540 ;  Mc- 
IMechan  v.  Griffing,  3  Pick.  149;  15  Am.  Dec.  198;  Webster  v.  Van 
Steenbergh,  46  Barb.  211 ;  Pope  v.  Allen,  90  N.  Y.  298 ;  Tuttle  v.  Jackson,  6 
Wend.  213;  21  Am.  Dec.  306:  Page  «.  Waring,  76  N.  Y.  463;  Ely  v.  Wil- 
cox, 20  Wis.  523;  91  Am.  Dec,  436;  Betts  v.  Letcher,  1  S.  D,  182;  46 
N.  W.  Rep.  193 ;  Beaubrien  v.  Henderson,  38  Kan.  471 ;  16  Pac.  Rep,  796 ; 
Trezise  v.  Lacy,  22  Kan,  472;  Simmons  Creek  Coal  Co,  v.  Doran,  142 
TJ,  S.  417 ;  Noyes  v.  Hall,  97  U,  S,  34;  Townsend  v.  Little,  109  U,  S,  504; 
Gum  V.  Equitable  Trust  Co.,  1  McCrary,  51 ;  McLean  v.  Clapp,  141  U,  S. 
429;  Webber  i;.  Taylor,  2  Jones  Eq.  9;  Tankard  v.  Tankard,  79  N.  C,  54; 
Dutton  V.  Warschauer,  21  Cal,  609;  82  Am.  Dec.  765;  Fair?;,  Stevenot,29 
Cal,  486;  Smith  v.  Yule,  31  Cal.  180;  89  Am.  Dec.  167;  Blankenship  w. 
Douglas,  26  Tex.  225;  82  Am.  Dec.  608;  Satterwhite  v.  Rosser,  61  Tex. 
166;  Bernstein  v.  Humes,  71  Ala.  260;  Truesdale  v.  Ford,  37  111.  210; 
Bogue  V.  Williams,  48111,  371 ;  Smith  v.  Jackson,  76  111.  254;  Partridge  w. 
Chapman,  81  111.  137;  Morrison  v.  Kelly,  22  111.  610;  74  Am.  Dec.  169; 
Rock  Island  &  P.  Ry.  Co.  v.  Dimick,  144  111.  628;  32  N.  E.  Rep.  291; 


1037  THE    DOCTRINE    OF    NOTICE.  §  769 

owner  of  th,e  equitable  title  to  sixty  acres  of  land,  of 
which  three-quarters  of  an  acre  had  been  cleared  and 
fenced,  placed  a  person  upon  the  tract  who  resided  on  an 
adjoining  tract.  The  land  was  situated  in  a  densely  tim- 
bered and  thinly  inhabited  country.  The  person  left  in 
charge  of  the  land  chopped  wood  upon  and  cultivated  the 
part  which  had  been  cleared.  Among  the  neighbors  the 
general  understanding  was  that  the  land  belonged  to 
the  person  having  the  equitable  title  to  it.  It  was  held 
by  a  majority  of  the  court  that  one  who  took  a  mortgage 
from  the  holder  of  the  legal  title,  took  by  reason  of  this 
possession  with  notice  of  the  rights  of  the  equitable 
owner.*     While  there  may  be  some  difference  of  opinion 

Davis  V.  Hopkins,  15  HI.  519;  Mason  v.  Mullahy,  145  111.  383;  34  N.  E. 
Rep.  36;  Western  Min.  Co.  w.Peytona  Coal  Co.,  8  W.  Va.  406;  Corer. 
Faupel,  24  W.  Va.  288;  Martin  v.  Jackson,  27  Pa.  St.  504;  67  Am.  Dec. 
48y;Boyce  v.  McCuUoch,  3  W.  &  S.  429;  39  Am.  Dec.  35;  Meehan  v. 
Williams,  48  Pa.  St.  238;  Jeffersonville  M.  &  T.  R.  Co.  v.  Oyler,  82  Ind. 
394;  Hawes  v.  Wiswell,  8  Me.  94;  Butler  v.  Stevens,  26  Me.  484;  Bell  v. 
Twilight,  22  N.  H.  500;  Patten  v.  Moore,  32  N.  H.  382;  Ellis  v.  Young,  31 
S.  C.  322;  9  S.  E.  Rep.  955;  Williams  r.  Sprigg,  6  Ohio  St.  585;  Ranney 
V.  Hardy,  43  Ohio  St.  157;  1  N.  E.  Rep.  523;  Brophy  Min.  Co,  v.  Brophy 
and  Dale  G.  &  S.  Min.  Co.,  15  Nev.  101 ;  McKee  v.  Wilcox,  11  Mich.  358; 
83  Am.  Dec.  743;  Smith  v.  Greenop,  60  Mich.  61 ;  26  N.  W.  Rep.  832. 

^  Wickes  V.  Lake,  25  Wis.  71.  A  very  able  dissenting  opinion  was 
filed  by  Dixon,  C.  J.  In  the  opinion  of  the  court,  delivered  by  Cole,  J., 
it  was  said  :  "  For  what  more  notorious,  open,  visible,  and  unambiguous 
ac'iS  of  possession  and  ownership  can  be  manifested  over  real  estate, 
than  by  chopping,  clearing  up,  fencing,  and  actually  cultivating  between 
two  and  three  acres  of  heavily  timbered  land  ?  True,  the  number  of 
acres  is  not  large,  yet  it  will  cost  as  much  time,  labor,  and  money  to 
chop  and  clear  up  three  acres  of  heavily  timbered  land,  and  make  it 
fit  for  cultivation,  as  it  will  to  make  large  improvements  on  the  prairie. 
The  possession  and  cultivation  of  a  large  inclosed  field  on  the  prairie, 
by  raising  wheat  upon  it,  would  not  naturally  be  more  observed  by  the 
public,  or  create  a  stronger  presumption  of  notice,  than  such  an  im- 
jjrovement  in  the  woods.  And  it  is  very  plain  that  such  unambigu- 
ous acts  of  ownership  over  land  will  never  be  confounded  with  mere  acts 
of  trespass.  They  are  not  liable  to  any  such  misconstruction.  Con- 
sidering the  condition  of  the  country,  that  it  was  sparsely  settled 
and  but  a  little  cleared  up,  the  ck-aring,  fencing,  and  cultivating  one, 
two,  or  three  acres  are  such  decided  acts  of  ownership  as  will  not  fail 
to  attract  the  notice  of  the  public,  as  it  seems  they  did  in  this  case,  and 
are  of  such  a  character  as  to  be  notice  to  a  purchaser.  Such  improve- 
ments under  the  circumstances  are  ox)en,  visible,  notorious,  and  unam- 


/  <l 


TIIK    DOCTRINE    OF    NOTICE.  1038 


upon  the  question  of  fact  as  to  whether  possession  in  any 
given  case  has  been  open,  visible,  notorious,  and  exclusive, 
yet  that  a  possession  of  this  kind,  as  a  matter  of  law,  is  re- 
quired, cannot  be  questioned.^ 

§  770.  Possession  under  one  kind  of  right  as  notice 
of  other  rights. — It  is  declared  by  one  class  of  cases  that 
where  possession  of  land  is  acquired  under  one  kind  of 
right,  such  possession  is  not  notice  of  another  interest 
which  the  occupant  has  acquired  subsequently,  in  the  ab- 
sence of  peculiar  circumstances  of  sufficient  consequence 
to  attract  attention  to  the  change  of  the  former  title  or 

biguous,  and  are  as  striking  evidence  of  the  continued  and  complete 
possession  of  the  land  by  the  party  who  makes  them,  as  can  well  be 
imagined.  For  we  do  not  understand  the  rule  to  be,  that  a  person  must 
actually  reside  upon  the  land  to  make  his  possession  notice.  He  may 
actually  Improve  and  cultivate  it,  and  perform  decided  acts  of  ownership 
over  it,  without  residing  upon  it.  He  may  cultivate  and  improve  it  by  a 
tenant ;  for  the  possession  of  the  tenant  is  his  possession.  But  here  there 
were  actual,  visible,  and  substantial  improvements  made,  which  would 
cost  considerable  labor  and  money  to  make  them;  land  was  cleared 
up,  fenced,  and  cultivated,  and  the  occupation  and  possession  were  as 
notorious  and  exclusive  as  could  have  existed,  unless  Lake  and  Palmer 
had  actually  resided  upon  their  several  tracts."  See,  also,  Krider  v. 
Lafferty,  1  Whart.  303,  where  planting  ground  with  willows  to  obtain 
materials  to  carry  on  the  trade  of  basket  making  was  held  sufficient  pos- 
session.    And  see,  also,  Banner  v.  Ward,  12  Fed,  Rep.  820. 

'  Pope  V.  Aden,  90  N.  Y.  298;  Webber  v.  Taylor,  2  Jones  Eq.  9;  Will- 
iams V.  Sprigg,  6  Ohio  St.  585;  Butler  v.  Stevens,  26  Me.  484;  Tankard 
V.  Tankard,  79  N.  C.  54;  Patten  v.  Moore,  32  N.  H.  382;  Ety  v.  Wilcox, 
20  Wis.  523;  91  Am.  Dec.  436;  Cabeen  v.  Breckenridge,  48  III.  91 ;  Holmes 
V.  Powell,  8  De  Gex,  M.  &  G.  572;  Jefferson  etc.  R.  R.  Co.  v.  Oyler.  82 
Ind.  394;  Gum  v.  Equitable  Trust  Co.,  1  McOrary,  51 ;  Trezise  v.  Lacy, 
22  Kan.  742;  Truesdale  v.  Ford,  37  111.  210;  Noyes  v.  Hall,  7  Otto,  34; 
Taylor  v.  Kelly,  3  Jones  Eq.  240;  Dunlap  v.  Wilson,  32  111.  517 ;  Bradley 
V.  Snyder,  14  111.  263;  58  Am.  Dec.  564;  Bogue  v.  Wdliams,  48  III.  371; 
Troy  City  Bank  v.  Wilcox,  24  Wis.  671 ;  Martin  v.  Jackson,  3  Casey,  504; 
67  Am.  Dec.  489;  Bell  v.  Twilight,  22  N.  H.  500;  Wright  v.  Wood,  11 
Harris,  120;  Meehan  v.  Williams,  12  Wright,  238;  Webster  v.  Van  Steen- 
bergh,  46  Barb.  211 ;  Brophy  Mining  Co.  v.  Brophy  G.  &  S.  M.  Co.,  15 
Nev.  101;  Tuttle  v.  Jackson,  6  Wend.  213;  21  Am.  Dec.  306.  See,  also, 
Evans  v.  Templeton,  69  Tex.  375;  5  Am.  St.  Rep.  71;  Worcester  v.  Lord, 
56  Me.  265;  96  Am.  Dec.  456;  Schwallback  v.  Chicago  etc.  Ry.  Co.,  69 
Wis.  292;  2  Am.  St.  Rep.  ,740;  White  v.  White,  103  III.  313;  Pope  v. 
Allen,  90  N.  Y.  298;  Beaubrien  ?;.  Henderson,  38  Kan.  471;  Parker  v. 
Baines,  65  Tex.  605. 


1039  THE  DOCTRINE  OF  NOTICE.  §  770 

interest.'  In  cue  of  these  cases,  althongli  the  decision 
was  based  on  anotlier  point,  Mr.  !justice  Wilde  said:  "  I 
admit  that  generally  the  open  and  notorious  possession  of 
the  first  purchaser  under  his  deed  would  be  sufficient  to 
raise  a  legal  presumption  of  notice.  But  suppose  tliat  a 
lessor  should  grant  the  fee  of  the  land  to  the  lessee,  he  be- 
ing in  possession  under  the  lease,  and  the  next  day 
should  make  a  second  grant  to  a  third  person  who  well 
knew  that  the  lessee  the  day  before  was  in  possession 
under  the  lease,  how  does  his  continued  possession  fur- 
nish evidence  of  notice  of  his  purchase?  To  imply  no- 
tice in  such  case  is  to  presume  a  fact,  without  proof  and 
against  probabilit3\"^  Where  an  owner  of  a  vacant,  un- 
improved town  lot,  uses  in  common  with  his  tenants  of 
adjoining  premises,  such  lot  as  a  yard  in  which  to  hang 
out  and  dry  clothes,  such  use  and  possession  will  not  pre- 
vail as  constructive  notice  against  an  interest  acquired  by 
a  purchaser  or  mortgagee  in  good  faith  without  actual 
notice.^     But  the  proper  rule  seems  to  be  that   possession 

1  Williams  v.  Sprigg,  6  Ohio  St.  585;  McMechan  v.  Griffing,  3  Pick. 
149,154;  15  Am.  Dec.  198;  Lincoln  v.  Thompson,  75  Mo.  613;  Bush  v. 
Golden,  17  Conn.  594 ;  Kendall  v.  Lawrence,  22  Pick.  540.  See  Matthews 
V.  Demerritt,  22  Me.  312. 

"^  In  McMechan  v.  Griffing,  3  Pick.  149,  155;  15  Am.  Dec.  198. 

^  Williams  v.  Sprigg,  6  Oliio  St.  585.  In  delivering  the  opinion  of 
the  Court,  Bowen,  J.,  said  (p.  594) :  "The  complainant  owned  the  hotel 
which  occupied  the  front  of  two  lots.  Lot  No.  311  adjoined  thetn.  It 
was  vacant,  and  had  during  the  construction  of  the  hotel  become  a  sort 
of  lumberyard,  on  which  building  and  other  materials  had  accumulated. 
In  the  spring  of  1837,  the  complainant  buys  the  lot  in  order  to  enhance 
the  comfort  and  convenience  of  his  hotel.  He  removes  some  of  the  lum- 
ber and  rubbish  therefrom,  but  does  nothing  more.  He  does  not  build 
upon  it ;  he  does  not  fence  it ;  but  his  tenant  of  the  other  lots  and  hotel 
bangs  out  clothes  there  to  dry  after  being  washed.  This  is  the  extent 
to  the  possession  held  and  exercised  by  complainant  during  the  sea- 
son of  1837.  No  lease  was  made  to  Segur,  the  tenant  of  the  hotel,  for  it, 
no  rent  paid  for  it,  no  acts  of  ownership  by  him  exercised  over  it.  Com- 
plainant was  seen  once,  as  witness  thinks,  removing  some  of  the  mate- 
rials from  it.  Should  such  acts  of  possession  and  control  be  held  to  give 
notice  to  purchasers  of  equities  and  equitable  titles  not  otherwise  com- 
municated or  made  known  to  them?  We  think  the  rule  has  never  been, 
and  should  never  be,  carried  so  far.  There  must  be  something  in  the 
acis  which  accompany  possession  of  property,  in  order  to  give  construct- 


§§771,772  THE    DOCTRINE    OF    NOTICE.  1040 

should  be  held  to  be  notice  of  all  the  rights  of  the  party 
in  possession,  where  that  possession  is  open,  visible,  ex- 
clusive, distinct,  and  unequivocal,^ 

§  771.  Sign  of  real  estate  agent. — Where  the  agent  of 
a  party  claiming  title  to  real  estate  put  upon  the  premises 
a  board  on  which  was  printed  a  notice  that  the  land  was 
for  sale  by  the  agent,  and  giving  the  agent's  address,  it 
was  held  that  this  was  sufficient  notice  of  the  owner's 
rights  as  upon  inquiry  of  the  agent,  and  one  could  ascer- 
tain the  extent  and  character  of  title.^ 

§  772.  Possession  by  church.  —  A  possession  of  a 
church  or  a  meetinghouse  by  its  officers    for  the  ordinary 

ive  notice,  which  can  be  seen  and  understood,  something  that  will  in- 
duce inquiry,  that  will  naturally  raise  the  question  as  to  who  may  have 
rights  there.  Living  on  the  premises,  raising  crops  on  them,  the  em- 
ployment of  persons  there  in  the  making  of  improvements,  accompanied 
by  frequent  acts  and  expressions  of  ownership,  would  produce  such  no- 
toriety, undoubtedly,  as  should  put  purchasers  upon  their  guard,  and 
induce  investigation  to  acquire  knowledge  sufficient  to  enable  them  to 
deal  safely.  This  may  not  be  the  only  means  of  conveying  notice  to 
6tran<rers,  and  without  intending  to  define  exactly  what,  in  all  cases,  will 
constitute  constructive  notice,  we  feel  no  hesitation  in  saying  that  the 
stretching  of  a  clothesline  over  a  vacant,  adjoining  town  lot,  by  the  ten- 
ant of  other  premises,  on  which  to  hang  clothes  to  dry,  or  a  casual  act  of 
removing  stone,  brick,  or  lumber  therefrom,  belonging  to  an  owner  who 
had  placed  them  there  while  constructing  a  house  on  the  next  lot,  would 
not  charge  a  bona  fide  purchaser  or  mortgagee  with  notice  of  equities  in 
the  landlord  of  such  tenant,  or  the  owner  who  removed  such  materials. 
Something  more  is  required." 

1  See  Kogers  v.  Jones,  8  N.  H.  264;  Kerr  v.  Day,  14  Pa.  St.  112  j  53 
Am.  Dec.  526;  McKecknie  •;;.  Hoskins,  23  Me.  230;  Woods  v.  Farmere,  7 
"Watts,  382;  32  Am.  Dec.  772;  Bailey  v.  Richardson,  9  Hare,  734;  Allen 

V.  Anthony,  1  Mer.  282;  Powell  v.  Dillon,  2  Ball.  &  B.416;  Barnhart  v. 

Greenshields,  9  Moore  C.  P.  33 ;  Hanbury  v.  Litchfield,  2  Mylne  &  K. 

629;  Taylor  v.  Stibbert,  2  Ves.  437;  Daniels  v.  Davidson,  16  Ves.  249; 

Crofton  V.  Ormsby,  2  Schoales  &  L.  583;  Moreland  v.  Richardson,  24 

Beav.  33;  Wilbraham  v.  Livesey,  18  Beav.  206;  Lewis  v.  Bond,  18  Beav. 

85;  Jones  v.  Smith,  1  Hare,  43. 

»  Hatch  V.  Bigelow,  39  111.  546.     On  this  point  the  court  said:  "The 

board  erected  was  placed  on  the  lot  by  Kerfoot,  as  the  agent  of  Lush- 

baugh,  after  the  purchase  by  the  latter.     It  is,  therefore,  to  be  regarded 

as  placed  there  by  Lushbaugh,  and  as  if  it  had  referred  persons  desiring 

to  purchase  to  himself." 


1041  THE    DOCTRINE    OP    NOTICE.  §  773 

purposes  of  worship  is  a  sufficient  possession  to  put  a 
purchaser  upon  inquiry.  A  possession  of  tliis  character 
is  just  as  effectual  for  giving  notice  as  if  a  dwelling-house 
had  been  erected  upon  the  land,  and  it  was  actually  in- 
habited/ So  the  possession  of  rooms  by  a  lodge  under  a 
lease  is  sufficient  to  charge  a  purchaser  with  notice,  nor  is 
he  relieved  from  the  duty  of  inquiry  by  the  fact  that  the 
doors  of  the  rooms  were  locked  when  he  looked  at  the 
house  and  he  was  not  aware  of  their  occupation.^ 

§  773.  Possession  distinct. — The  possession  must  be 
distinct  and  unequivocal.  Where  the  grantee  bought  by 
parol  a  corner  of  the  grantor's  tract,  went  into  possession 
and  erected  buildings,  but  did  not  reduce  the  part  pur- 
chased by  him  by  survey  or  other  means  to  certainty, 
and  on  the  part  of  the  tract  retained  by  the  grantor  a 
forge,  dwelling-house,  grist  and  saw  mill,  and  buildings 
for  the  workmen  were  situated,  so  that  the  buildings  of 
the  grantee,  with  those  of  the  grantor,  might  appear  to 
an  observer  as  one  establishment,  it  was  held  that  the 
grantee's  possession  was  not  sufficient  to  charge  persons 
with  notice.^  "At  best,"  said  Yeates,  J.,  "the  possession 
of  the  defendant  was  of  a  mixed  nature.  His  pretensions 
were  not  defined  by  marked  boundaries  or  an  actual  sur- 
vey. If  one  inclining  to  purchase  had  previously  viewed 
the  premises,  he  would  have  seen  nothing  but  what  usu- 
ally occurs  where  forges,  grist,  and  saw  mills  are  carried 
on,  outhouses  and  cabins  for  the  accommodation  of 
colliers  and  other  workmen.  Without  such  conveniences, 
those  manufactories  could  not  be  carried  on.  The  de- 
fendant's holding  under  such  circumstances  could  not 
convey  the  same  information,  nor  put  a  purchaser  upon 
inquiry  in  the  same  manner,  as  an  exclusive,  unmixed 
possession  in  common  cases  might  reasonably  seem  to 

'  Randolph  v.  Meeks,  Mart.  &  Y.  58;  Macon  v.  Sheppard,  2  Humph. 
33.5. 

^  Scheerer  v.  Cuddy,  85  Cal.  270. 

»  Billington  v.  Welsh,  5  Binn.  129;  6  Am.  Dec.  406;  Pope  v.  Allen,  90 
N.  Y.  298. 

L>i£EDs,  Vol.  n.  —66 


I 


§  774  THE    DOCTRINE    OF    NOTICE.  1042 

give."^  A  third  person  is  not  chargeable  with  construc- 
tive notice  of  an  unrecorded  deed,  where  the  grantor  and 
grantee  were  in  joint  possession  of  the  land  at  the  time 
of  tlie  execution  of  the  deed,  and  there  was  no  change  in 
possession  afterward.^  In  a  word,  tlie  possession  must  be 
actual,  visible,  and  open.  It  must  not  be  equivocal  or 
consistent  with  the  title  shown  by  the  record.^ 

§  774.  Possession  continuous. — The  party  who  claims 
that  his  possession  was  notice  to  a  subsequent  purchaser, 
must  show  that  the  possession  was  continuous.  A  pur- 
chaser Is  not  compelled  to  inquire  of  a  late  occupier  of 
land  as  to  the  nature  of  his  title.*  Where  a  purchaser  at 
a  foreclosure  sale  ousts  the  tenant  of  a  purchaser  from  the 
premises  under  an  unrecorded  deed  and  takes  possession 
himself,  the  prior  possession  is  not  notice  of  title  to  sub- 
sequent purchasers  from  the  grantee  in  the  sheriff's  deed 
on  the  foreclosure  sale.*  "  It  must  be  occupancy,  some- 
thing more  than  successive  and  occasional  entries  on  the 
land.  All  the  authorities  agree  that  possession  is  not 
notice,  except  during  its  continuance,  and  that  even  when 
his  vendor  is  out  of  possession,  a  vendee  is  not  bound  to 
take  notice  of  the  antecedent  possession  of  third  per- 
sons. A  purchaser  is  bound  to  inquire  only  of  those  on 
the  land  at  the  time  of  his  purchase.     The   authorities 

»  In  Billington  v.  Welsh,  5  Binn.  135;  6  Am.  Dec.  406.  See,  also, 
Hanrick  v.  Thompson,  9  Ala.  409. 

*  McCarthy  v.  Nicrosi,  72  Ala.  332;  47  Am.  Rep.  418.  Where  a  deed 
not  recorded  was  executed  by  a  person  to  his  mother  in  law,  both  re- 
siding on  the  farm  after  the  execution  of  the  deed  as  before,  the 
grantor  exercising  authority  to  some  extent  over  the  farm  and  the  busi- 
ness of  farming,  and  the  grantee  residing  with  him  as  a  member  of  hia 
family,  the  possession  of  the  grantee  is  not  suflScient  to  impart  notice, 
notwithstanding  she  may  have  managed  the  business  of  the  farm,  it  not 
being  shown,  however,  that  she  had  exclusive  control :  Elliott  v.  Lane, 
82  Iowa,  484  ;  31  Am.  St.  Rep.  504. 

»  Pope  V.  Alien,  HO  N.  Y.  298. 

*  Campbell  v.  Brackenridge,  8  Blackf.  471 ;  Ehle  v.  Brown,  31  Wis. 
405.    See  Brown  v.  Volkening,  64  N.  Y.  76;  Hewes  v.  Wiswell,  8  Me.  94. 

*  Ehle  V.  Brown,  31  Wis.  405.  See,  also,  Hewes  v.  Wiswell,  8  Me. 
94;  Hiiler  v.  Jones,  66  Miss.  636;  6  So.  Rep.  645. 


1043  THE  DOCTRINE  OF  NOTICE.  §  775 

are  equally  clear  that  to  be  effective,  as  notice,  possession 
even  at  the  time  of  the  sale  must  be  distinct  and  une- 
quivocal. It  is  even  said  in  some  of  the  cases,  that  it 
must  be  actual,  and  of  such  a  nature  as  would  suffice  to 
constitute  a  disseisin  or  adverse  possession."  * 

§   775.     Tenant's   possession   as    notice    of    landlord's 

title. — On  the  question  of  whether  a  possession  by  a  ten- 
ant is  notice  of  the  title  of  the  landlord,  the  authori- 
ties are  divided.  It  is  held,  by  wliat  we  consider  the 
weight  of  authority,  that  the  possession  of  a  party  makes 
it  obligatory  upon  a  purchaser  to  inquire  as  to  the  rights 
under  which  such  possession  is  taken  and  held,  and 
charges  such  purchaser  with  notice  of  all  the  facts  which 
he  might  ascertain  by  prosecuting  such  inquiry,  and 
hence  such  possession  by  a  tenant  is  notice  of  the  lessor's 
title.^  "A  person  who  purchases  an  estate  in  the  posses- 
sion of  another  than  his  vendor,  is,  in  equity,  that  is,  in 
good  faith,  bound  to  inquire  of  such  possessor  what  right 
he  has  in  the  estate.  If  he  fails  to  make  such  inquiry, 
which  ordinary  good  faith  requires  of  him,  equity  charges 
him  with  notice  of  all  the  facts  that  such  inquiry  would 
disclose.     Suppose  the  possessor  is  a  tenant  holding  un- 

1  Meehan  v.  Williams,  48  Pa.  St.  238,  240,  per  Strong,  J.,  and  cases 
cited.  And  see  as  to  rule  in  England,  Knight  v.  Bowyer,  2  De  Gex  &  J. 
421 ;  23  Beav.  609 ;  Jones  v.  vSmith,  1  Hare,  43 ;  Miles  v.  Langley,  1  Russ.  & 
M.  39;  Holmes  v.  Powell,  8  De  Gex,  M.  &  G.  572;  Feilden  v.  Slater,  Law 
K.  7  Eq.  523;  Wilson  v.  Hart,  Law  R.  1  Ch.  463;  Parker  v.  Whyte,  1 
Hem.  Sc  M.  167;  Clements  v.  Welles,  Law  R.  1  Eq.  200;  35  Beav.  513. 

*  Cunningham  v.  I'attee,  99  Mass.  248;  Conlee  v.  McDowell,  15  Neb. 
184;  Edwards  v.  Thompson,  71  N.  C.  177;  Kerr  v.  Day,  14  Pa,  St.  112; 
53  Am.  Dec.  526;  O'Rourke  v.  O'Connor,  39  Cal.  442;  Dickey  v.  Lyon, 
19  Iowa,  544;  Sailor  v.  Hertzog,  4  Whart.  259;  Thompson  v.  Pioche,  44 
Cal.  508;  Pittnian  v.  Gaty,  5  Gilm.  186;  Nelson  v.  Wade,  21  Iowa,  49; 
Sergeant  v.  Ingersoll,  15  Pa.  St.  343;  Morrison  v.  March,  4  Minn.  422; 
The  Bank  v.  Flagg,  3  Barb.  Ch.  316;  Hood  v.  Fahnestock,  1  Barr.  470- 
44  Am.  Dec.  147 ;  The  Bank  v.  Godfrey,  23  111.  579 ;  Kerr  v.  Day,  14  Pa.' 
St.  112;  53  Am.  Dec.  526:  Wright  v.  Wood,  23  Pa.  St.  120;  Bowman  v. 
Anderson,  82  Iowa,  210;  31  Am.  St.  Rep.  473;  Phillips  v.  Blair,  38  Iowa, 
649;  Glendenniitg  v.  Bell,  70  Tex.  633;  Woodson  v.  Collins,  56  Tex.  175 1 
Taylor  v.  Mcseley,  57  Miss.  644;  Liebrick  v.  Stable,  08  Iowa,  515;  Pease- 
ley  V.  McFadden,  C8  Cal.  611. 


§  775  a  THE    DOCTRINE    OP    NOTICE.  1044 

der  a  lease,  an  inquiry  of  such  tenant  would  advise  the 
purchaser,  not  only  of  the  length  of  time  and  terms  of 
tenancy,  but  also  of  the  landlord,  and  hence  that  some 
other  person  than  his  proposed  vendor  claimed  a  right 
to  the  estate,  and  was  holding  possession  thereof  by  his 
tenant.  Being  thus  advised,  equity  in  vindication  of  or- 
dinary good  faith,  requires  him  to  ascertain  the  extent  of 
right  of  such  landlord  in  the  estate."^  While  this  is  the 
rule  that  prevails  in  the  majority  of  the  States,  it  is  in 
conflict  with  the  English  decisions,  and  several  in  our  own 
country.^ 

§  775  a.  Notice  from  clause  of  option  to  purchase  in 
lease. — A  clause  in  a  lease  by  which  the  tenant  has  the 
option  to  purchase  the  demised  premises,  is  not  a  part  of 
the  lease,  although  it  may  be  incorporated  in  it.  It  is  a 
distinct,  independent  agreement,  and  not  necessarily  con- 
nected with  the  lease,  and  is  not  usually  a  part  of  it.  A 
person  who  has  knowledge  of  a  lease  cannot  object,  if  he 
purchases  the  property  without  examining  the  lease,  that 
he  did  not  have  notice  of  a  particular  covenant,  and,  even 
in  some  cases,  notice  may  be  imputed  to  him  of  unusual 
covenants,  and  even  of  a  collateral  agreement  to  purchase. 
But  where  notice  arises  from  the  fact  of  possession  and 
the  duty  to   inquire,  the  purchaser  is  charged  not  only 

1  Dickey  v.  Lyon,  19  Iowa,  544,  549,  per  Cole,  J.,  and  cases  cited. 
Where  a  lessor  having  title  of  record  in  his  name  when  a  judgment  is 
docketed  against  him  has  conveyed  the  land  to  another  who  has  in- 
formed the  tenant  of  the  execution  of  the  deed,  a  judgment  creditor  will 
not  be  charged  with  notice.  He  is  charged  with  notice  of  such  facta 
only  as  by  inquiry  he  might  naturally  be  informed  of  and  not  of  such 
facts  as  the  inquiry  might  possibly  lead  to :  Wilkins  v.  Bevier,  43  Minn. 
213 ;  19  Am.  St.  Rep.  238.  A  tenant's  possession  affords  notice  of  an  un- 
recorded lease:  Dreyfus  v.  Hirt,  82  Cal.  621;  and  of  the  unrecorded 
deed  of  his  lessor:  Morrison  v.  Kelly,  22  111.  610;  74  Am.  Dec.  169;  Levy 
V.  Holberg,  67  Miss.  526. 

*  Hanbury  v.  Litchfield,  2  Mylne  &  K.  629;  Jones  v.  Smith,  1  Hare, 
43;  Barnhart  t).  Greenshields,  9  Moore  P.  0.  C.  36;  Beatie  v.  Butler, 
21  Mo.  313 ;  64  Am.  Dec.  234 ;  Flagg  v.  Mann,  2  Sum.  486.  See,  also, 
Veazie  v.  Parker,  23  Mo.  170;  Roll  v.  Rea,  50  N.  J.  L.  266.  And  see 
Smith  V.  Miller,  63  Tex.  72. 


1045  THE    DOCTRINE    OF    NOTICE.  §  776 

when  it  may  be  presumed  that  he  actually  knew,  but  also 
when  there  are  reasons  for  believing  that  by  reasonable 
diligence  he  would  have  discovered  the  truth.  The  ten- 
ant's possession  imposes  upon  an  intending  purchaser  the 
duty  of  inquiry  as  to  the  tenant's  title,  but  as  between  the 
vendor  and  himself,  the  purchaser  will  be  charged  with 
notice  of  the  covenants  of  a  lease  of  which  he  had  knowl- 
edge, but  had  not  examined,  and  as  to  whose  contents  he 
has  been  in  no  manner  misled,  but  he  will  not  be  charged 
with  notice  of  a  distinct  collateral  agreement.  If  the 
agreement  to  sell  has  been  separate  and  distinct  from  the 
lease,  it  would  not,  as  between  the  vendor  and  vendee, 
have  been  notice  of  the  equity  of  the  tenant.  Hence,  if 
the  tenant  exercises  his  option  to  purchase  during  the 
existence  of  the  tenancy,  the  vendee  may  purchase  from 
the  tenant  and  recover  the  difference  in  price  from  the 
lessor.^ 

§  776.  Comments.  —  The  underlying  principle  on 
which  the  notice  arising  from  possession  is  based,  is  that 
a  fact  is  presented  to  the  purchaser's  attention,  which,  if 
he  is  acting  in  good  faith,  is  sufficient  to  cause  him  to 
pause,  and  ascertain  to  what  title  that  fact  is  attributable. 
He  should  satisfy  himself  as  to  the  extent  of  the  claim 
made  by  the  party  in  possession.  If  he  finds  that  the 
latter  is  holding  under  an  unrecorded  deed,  he  knows 
that  he  cannot  secure  a  valid  title.  If  the  person  in  pos- 
session is  holding  as  a  tenant  of  one  who  has  an  unre- 
corded deed,  this  fact  is  as  easily  learned  as  if  the  tenant 
was  himself  the  grantee  in  the  unrecorded  deed.  The 
landlord's  title  can  be  ascertained.  The  purchaser  should 
at  least  make  an  effort  to  ascertain  the  character  of  the 
title  of  the  party  in  possession.  If  he  does  not  make  the 
attempt,  he  must  suffer  the  consequences  of  his  negli- 
gence. He  is  chargeable  with  notice  of  all  that  a  proper 
inquiry  would  have  disclosed.  We  think  that  when  the 
doctrine  of  notice  from  possession  is  once  admitted,  the 

»  Wertheimer  v.  Thomas,  168  Pa.  St.  168 ;  47  Am.  St.  Rep.  882. 


§  777  THE    DOCTRINE    OP    NOTICE.  1046 

possession  of  a  tenant  should  be  notice  of  the  title   of 
the  landlord. 

§  777.  An  inference  of  fact. — While  in  many  cases 
expressions  are  found  to  the  effect  that  possession  is  notice 
itself,  yet  these  seem  to  be  incorrect  statements  of  the 
true  rule.  In  such  cases  certain  facts  have  existed  which 
the  court  considered  sufficient  to  put  a  party  upon  in- 
quir}^  and,  having  failed  to  prosecute  it,  he  is  chargeable 
with  all  he  might  have  learned  if  he  had  commenced  an 
investigation  and  diligently  prosecuted  it.  There  can  be 
little  or  no  doubt  that  if  such  inquiry  had  been  prop- 
erly prosecuted,  and  the  party  had  not  obtained  informa- 
tion as  to  the  true  title,  he  would  not  be  held  charged 
with  notice.  That  is,  the  notice  given  by  possession  is 
an  inference  of  fact.  The  correct  rule,  it  seems  to  us,  is 
stated  by  Mr.  Justice  Selden:  "Possession  by  a  third  per- 
son, under  some  previous  title,  has  frequently  but  inac- 
curately been  said  to  amount  to  constructive  notice  to  a 
purchaser  of  the  nature  and  extent  of  such  prior  right. 
Such  a  possession  puts  the  purchaser  upon  inquiry,  and 
makes  it  his  duty  to  pursue  his  inquiries  with  diligence, 
but  is  not  absolutely  conclusive  upon  him";  and  further, 
"the  true  doctrine  on  this  subject  is,  that  where  a  pur- 
chaser has  knowledge  of  any  fact  sufficient  to  put  him  on 
inquiry  as  to  the  existence  of  some  right  or  title  in  con- 
flict with  that  he  is  about  to  purchase,  he  is  presumed 
either  to  have  made  the  inquiry  and  ascertained  the  ex- 
tent of  such  prior  right,  or  to  have  been  guilty  of  a  degree 
of  negligence  equally  fatal  to  his  claim,  to  be  considered 
as  a  bona  fide  purchaser.  This  presumption,  however,  is 
a  mere  inference  of  fact,  and  may  be  repelled  by  proof 
that  the  purchaser  failed  to  discover  the  prior  right,  not- 
withstanding the  exercise  of  proper  diligence  on  his  part."* 

^  In  Williamson  v..  Brown,  15  N.  Y.  354.  In  Rogers  v.  Jones,  8  N.  H. 
264,  270,  Mr.  Justice  Parker,  in  delivering  the  opinion  of  the  court,  said: 
"Possession  is  by  no  means  conclusive  evidence  of  the  existence  of  a  title 
in  the  party  in  possession.  It  may  be  prima  facie  evidence  of  title,  and 
is,  in  general,  a  sufficient  notice  to  put  a  third  person  on  inquiry  (Colby 


1047  THE    DOCTRINE    OP    NOTICE.  §  778 

Wliere  a  person  has  paid  the  full  consideration,  taken 
possession  and  erected  permanent  and  valuable  improve- 
ments, he  has  a  perfect  equitable  title,  and  in  a  suit  by  a 
subsequent  purchaser  for  possession,  the  prior  purchaser 
may  set  up  his  equitable  title  by  way  of  cross-complaint, 
and  obtain  a  decree  to  quiet  his  title.^ 


PART  III. 

AGENCY. 

§  778,  Notice  to  an  a§rent. — The  law  implies  to  the 
principal  such  notice  as  the  agent  acquires  as  to  the  state 
of  the  title,  when  engaged  in  negotiations  for  the  pur- 
chase of  the  property .2     The  notice  to  bind  the  principal 

r.  Kenniston,  4  N.  H.  266;  Daniels  v.  Davison,  16  Ves.  254;  Allen  v.  An- 
thony, 1  Mer.  283) ;  and  to  charge  him  constructively  with  notice  of  an 
existing  title  under  which  the  tenant  entered  if  he  neglects  it.  But 
being  a  notice  which  puts  a  party  on  inquiry  merely,  it  is  not,  aa  we 
have  seen,  necessarily  constructive  notice.  If  the  demandant  had  in- 
quired of  the  tenant  whether  he  held  a  deed,  and  been  told  he  had  none, 
it  would  be  very  preposterous  to  say  that  he  was,  notwithstanding,  to  be 
charged  with  constructive  notice  of  the  deed  to  the  wife,  because  she  also 
lived  on  the  land,  and  he  had  not  inquired  of  her.  AVere  this  otherwise, 
an  owner  who  was  in  possession  would  have  an  absolute  exemption  from 
the  provisions  of  the  registry  act,  his  possession  amounting  to  construct- 
ive notice,  or,  in  other  words,  to  conclusive  evidence  of  notice  of  his 
title."  See,  also,  Fair  v.  Stevenot,  29  Cal.  486;  Kerr  v.  Day,  14  Pa.  St. 
112;  53  Am.  Dec.  526;  Whitbread  v.  Jordan,  1  Younge  &  C.  303;  Thomp- 
son V.  Pioche,  44  Cal.  508;  Flagg  v.  Mann,  2  Sum.  486. 

'  Barnes  v.  Union  School  Township,  91  Ind.  301. 

»  Meier  v.  Blume,  80  Mo.  179;  Bank  of  United  States  v.  Davis,  2  Hill, 
451;  Williamson  v.  Brown,  15  N.  Y.  354,  359;  Josepthal  v.  Heyman,  2 
Abb.  N.  C.  22;  Hovey  v.  Blanchard,  13  N.  H.  145;  Walker  v.  Sckreiber, 
47  Iowa,  529;  Ames  v.  New  York  Ins.  Co.,  14  N.  Y.  253;  First  Nat.  Bank 
of  Milford  v.  Town  of  Milford,  36  Conn.  93;  Farrington  v.  Woodward,  82 
Pa.  St.  259 ;  Westervelt  v.  Haff,  2  Sand.  Ch.  98;  Holden  v.  New  York  etc. 
Bank,  72  N.  Y.  86;  Allen  t;.  Poole,  54  Miss.  323;  Fuller  v.  Bennett,  2 
Hare,  394;  Boursot  v.  Savage,  Law  R.  2  Eq.  134;  Rickards  v.  Gledstanes, 
3  Giff.  298.  See,  also,  Owens  v.  Roberts,  36  Wis.  258;  Ward  v.  Warren, 
82  N.  Y.  2G5;  Suit  v.  W'oodhall,  113  Mass.  391;  Jones  v.  Bamford,  21 
Iowa,  217;  Smith  v.  Denton,  42  Iowa,  48;  Tagg  w.  Tennessee  National 
Bank,  9  Heisk.  479;  Jackson  v.  Leek,  19  Wend.  339;  Myers  v.  Ross,  3 
Head,  59;  Saffron  etc.  Soc.  v.  Rayner,  Law  R.  14  Ch.  D.  406;  Atterbury 
V.  Wallis,  8  De  Gex,  M.  &  G.  454;  Dryden  v.  Frost,  3  Mylne  &  C.  670; 
Sheldon  v.  Cox,  2  Eden,  224;  Tunstall  v.  Trappes,  3  Sim.  301;  Dickerson 


§  778  THE    DOCTRINE    OF    NOTICE.  1048 

must  be  given  in  tlie  same  transaction  in  which  the  agent 
is  employed  by  the  principal.^  If  a  person,  while  a  di- 
reolvH'  of  a  corporation,  executes  a  deed  of  land  which  he 
owns,  and  subsequently  makes  a  mortgage  to  the  corpo- 
ration, the  latter  is  not  charged  with  constructive  notice 
of  such  prior  deed.  In  the  proceedings  connected  with 
the  mortgage,  the  director  deals  with  the  corporation  as  a 
third  party.  His  acts  in  this  matter  are  against  the  cor- 
poration, and  for  himself  alone.^    If  before  the  commence- 

r.  Bowers,  42  N.  J.  Eq.  295;  Stokes  v.  Riley,  121  111.  166;  Bigley  v.  Jones, 
114  Pa.  St.  510;  Young  v.  Shauer,  73  Iowa,  555;  5  Am.  St.  Rep.  701; 
Matthews  r.  Riggs,  80  Me.  107;  Donald  v.  Beals,  57  Cal.  399;  Coggswell 
r.  Griffith,  23  Neb.  334;  36  N.  W.  Rep.  538;  Cowan  v.  With  row.  111 
N.  C.  306;  16  S.  E.  Rep.  397;  Hickman  v.  Green,  123  Mo.  165;  27  S.  W. 
Rep.  440;  Merchants'  Nat.  Bank  v.  Lovett,  114  Mo.  519;  35  Am. 
St.  Kep.  770;  Slattery  v.  Schwannecke,  118  N.  Y.  543;  23  N.  E,  Rep.  922; 
I^Iorrison  v.  Bausemer,  32  Gratt.  225;  Bigley  v.  Jones,  114  Pa.  St.  510; 

7  Atl.  Rep.  54;  Smith  v.  Ayer,  101  U.  S.  320;  Yerger  v.  Barz,  56  Iowa, 
77 ;  8  N.  W.  Rep.  769 ;  Stanley  v.  Chamberlin,  39  N.  J.  L.  565. 

'  New  York  Central  Ins.  Co.  v.  National  Ins.  Co.,  20  Barb.  468;  War- 
rick V.  Warrick,  3  Atk.  291 :  Fuller  v.  Bennett,  2  Hare,  404.  See,  also, 
McCormick  v.  Wheeler,  36  111.  114;  85  Am.  Dec.  388;  Howard  Ins.  Co. 
V.  Halsey,  8  N.  Y.  271 ;  59  Am.  Dec.  478;  Houseman  v.  Girard  etc.  Assn., 
81  Pa.  St.  256;  Weisser  v.  Dennison,  10  N.  Y.  68 ;  61  Am.  Dec.  731 ;  North 
River  Bank  v.  Aymar,  3  Hill,  262;  Blumenthal  v.  Brainerd,  38  Vt.  402; 
91  Am.  Dec.  350;  Roach  v.  Karr,  18  Kan.  529;  26  Am.  Rep.  788;  Finch 
V.  Shaw,  19  Beav.  500;  Wyllie  v.  Pollen,  3  De  Gex,  J.  &  S.  596;  Banco 
de  Lima  v.  Anglo-Peruvian  Bank,  Law  R.  8  Ch.  D.  160;  Lloyd  v.  Att- 
wood,  3  De  Gex  &  J.  614;  Worsley  v.  Earl  of  Scarborough,  3  Atk.  392; 
Barbour  v.  Wiehle,  116  Pa.  St.  308 ;  9  Atl.  Rep.  520 ;  Hood  v.  Fahnestock, 

8  Watts,  489;  34  Am.  Dec.  489;  Fry  v.  Shehee,  55  Ga.  208;  Pepper  t;. 
George,  51  Ala.  190;  Pacific  Mfg.  Co.  v.  Brown,  8  Wash.  347;  36  Pac. 
Rep.  763;  May  v.  Borel,  12  Cal.  91;  Whitney  v.  Burr,  115  111.  289;  3 
N.  E.  Rep.  434;  Rogers  v.  Palmer,  102  U.  S.  263;  Satterfield  v.  Malone,  35 
Fed.  Rep.  445;  Pringle  v.  Dunn,  37  Wis.  449;  19  Am.  Rep.  772;  Clark 
V.  Fuller,  39  Conn.  238;  Wood  v.  Rayburn,  18  Or.  3;  22  Pac.  Rep.  521 
Haywood  v.  Shaw,  16  How.  Pr.  119;  Weisser  v.  Dennison,  10  N.  Y.  68 
61   Am.  Dec.   731;   Hodgkins  v.  Montgomery  Co.  Ins.  Co.,  34   Barb! 
213 ;  Morrison  v.  Bausemer,  32  Gratt.  225 ;  Tucker  v.  Tilton,  55  N.  H.  223 
Willis  V.  Vallette,  4  Met.  (Ky.)  186;  Kaufman  v.  Robey,  60  Tex.  308 
48  Am.  Rep.  264;  Roach  v.  Karr,  18  Kan.  529;  26  Am.  Rep.  788;  Har 
rington  v.  McFarland,  1  Tex.  Civ.  App.  289;  21  S.  W.  Rep.  116;  Smith 
V.  Sublett,  28  Tex.  163;  Irvine  v.  Grady,  85  Tex.  120;  19  S.  W.  Rep.  116. 

'  La  Farge  Fire  Ins.  Co.  v.  Bell,  22  Barb.  54.  See,  also,  Winchester 
V.  Susquehanna  R.  R.,  4  Md.  231;  Barnes  v.  Trenton  Gas  Light  Co.,  27 
N.  J.  Eq.  33.    In  the  latter  case  the  court  said :  "  His  interest  is  opposed 


1049  THE    DOCTRINE    OF    NOTICE.  §  779 

raent  of  the  agency  the  agent  had  notice  of  an  unrecorded 
lien  on  a  piece  of  real  property,  and  his  principal  after- 
ward takes  a  deed  of  it,  it  requires  very  strong  evidence 
to  show  that  at  the  time  of  the  execution  of  the  deed,  or 
of  the  purchase,  the  agent  remembered  the  reception  of 
such  notice  to  charge  the  principal  with  the  notice  of  the 
agent.^ 

§  779.  Matter  material  to  the  transaction. — To  affect 
the  principal  with  the  notice  received  by  the  agent,  the 
notice  must  be  of  some  fact  material  to  the  transaction. 
If  the  authority  of  the  agent  is  confined  to  obtaining  the 
execution  of  the  deed,  the  notice  of  the  agent  is  not  im- 
putable to  the  principal.^  A  grantor  took  a  mortgage 
from  his  grantee  to  secure  the  payment  of  the  purchase 
money,  and  intrusted  it  to  the  grantee  to  have  it  recorded. 
Before  depositing  the  mortgage  for  record,  the  grantee  and 
mortgagor  sold  the  land  to  a  bona  fide  purchaser,  by  a 
written  executory  contract.  Such  purchaser  paid  the 
grantee  a  full  and  valuable  consideration,  and  had  no 
notice  whatever  of  the  rights  of  the  mortgagee.  The 
mortgage  was  recorded  before  the  mortgagee  had  any  no- 
tice of  the  rights  of  the  contract  purchaser,  and  before 
the  latter  had  acquired  the  legal  title  or  had  taken  actual 
notorious  possession.  The  mortgagee  was  held  to  have 
the  priority  of  right.''  The  notice  must  be  received  by 
the  agent,  while  acting  as  such,  during  the  course  of  his 
actual  employment.*     The  rule  that  the  principal  is  bound 

to  theirs,  and  the  presumption  is,  not  that  he  will  communicate  his 
knowledge  of  any  secret  infirmity  of  the  title  to  the  corporation,  but 
that  he  will  conceal  it.  Where  an  officer  of  a  corporation  is  thus  deal- 
ing with  them,  in  his  own  interest  opposed  to  theirs,  he  must  be  held 
i:ot  to  represent  them  in  the  transaction  so  as  to  char>:;e  them  with  the 
knowledge  he  may  possess,  but  which  he  has  not  comiiimiicatcd  to  them, 
and  which  they  do  not  otherwise  possess,  of  facts  derogatory  to  the  title 
he  conveys." 

'  Morrison  v.  Bausemer,  32  Gratt.  225. 

»  Wyllie  V.  Pollen,  32  Law.  J.,  N.  S.,  782. 

*  Anketel  v.  Converse,  17  Ohio  St.  11;  91  Am.  Dec.  115.  See  Hoppock 
V.  Johnson,  14  Wis.  303. 

♦  McCormick  v.  Wheeler,  36  111.  114;  85  Am.  Dec.  388;  Smith  v.  Den- 


§§  780,781  THE    DOCTRINE    OP    NOTICE.  1050 

by  notice  to  his  agent  is  not  altered  by  the  fact  that  the 
ajiont  is  unable  to  read  or  write.^ 

§  780.  Ag-ent  for  both  parties. — When  both  the 
orantor  and  grantee  employ  the  same  agent  or  attorney, 
tlie  knowledge  that  he  acquires  during  the  continuance  of 
liis  agency  is  the  knowledge  of  both  parties.^  A  solicitor 
induced  a  client  to  take  a  mortgage  upon  certain  lands, 
and  afterward  induced  another  client  to  take  a  mortgage 
also  on  the  same  land.  The  solicitor  did  not  inform  the 
second  mortgagee  of  the  first  mortgage.  The  second 
mortgage  was  first  registered.  But  it  was  held  that  the 
second  mortgagee  must  be  considered  as  having  had, 
through  the  solicitor,  notice  of  the'  first  mortgage,  and 
did  not  obtain  precedence  by  priority  of  registration.* 

§  781.  Fraud  of  ag-ent. — The  law  presumes  that  the 
agent  will  acquaint  his  principal  with  such  information 
as  he  acquires  in  the  course  of  the  transaction  in  which 
he  is  employed.  But  where  the  agent  intends  to  commit 
a  fraud  for  his  own  benefit,  this  presumption,  of  course, 
can  no  longer  prevail.  In  such  a  case  it  is  essential  in 
order  that  the  agent  may  carry  out  his  fraudulent  design 
that  he  should  conceal  the  real  facts  from  his  principal. 
A  contrary  presumption,  where  the  agent  has  been  guilty 
of  fraud,  naturally  arises,  that   no    communication    has 

ton,  42  Iowa,  48;  May  v.  Borel,  12  Cal.  91 ;  Clark  v.  Fuller,  39  Conn.  238; 
"VVeisser  v.  Dennison,  10  N.  Y.  68;  61  Am.  Dec.  731 ;  Russell  v.  Sweezey, 
22  Mich.  235;  Fry  v.  Shehee,  55  Ga.  208;  Jones  v.  Bamford,  21  Iowa,  217 ; 
Hodgkins  v.  Montgomery  Co.  Ins.  Co.,  34  Barb.  213;  Pepper  v.  George, 
51  Ala.  190;  Spadone  v.  Manvel,  2  Daly,  263;  New  York  Cent.  Ins.  Co. 
V.  National  Protection  Ins.  Co.,  20  Barb.  468;  Saffron  etc.  Soc.  v.  Ray- 
ner.  Law  R.  14  Ch.  D.  406;  Dryden  v.  Frost,  3  Mylne  &  0.  670;  Wilde  v. 
Gibson,  1  H.  L.  Cas.  605;  Roach  v.  Karr,  18  Kan.  629;  26  Am.  Rep.  788; 
Tucker  v.  Tilton,  55  N.  H.  223. 

^  Meier  v.  Blume,  80  Mo.  179. 

*  Losey  v.  Simpson,  11  N.  J.  Eq.  346;  Fuller  v.  Bennett,  2  Hare,  403; 
Brotherton  v.  Hatt,  2  Vern.  574;  Hargreaves  v.  Roth  well,  1  Keen,  154. 
See,  also,  Dryden  v.  Frost,  3  Mylne  &  C.  670;  Majoribanks  v.  Hovenden, 
Dru.  11 ;  Tucker  v.  Henzill,  4  Irish  Ch.  Rep.  513;  Sheldon  v.  Cox,  2  Eden, 
224;  Tweedale  v.  Tweedale,  23  Beav.  341. 

^  Rolland  V.  Hart,  Law  R.  6  Ch.  678.  See,  alec,  Boursot  v.  Savage, 
Law  R.  2  Eq.  134. 


1051  THE    DOCTRINE    OF    NOTICE.  §§  782,  783 

I 

been  made  to  the  principal  by  the  agent  of  the  facts 
which  he  has  learned  during  his  agency.  Therefore,  in 
case  of  the  agent's  fraud  the  principal  is  not  affected  with 
notice  to  the  agent.^ 

§  782.  N"otice  to  a  partner. — Where  a  person  has  actual 
notice  of  a  prior  deed,  and,  with  his  partners,  purchases 
the  same  land,  his  partners  in  the  purchase  are  affected 
with  the  same  notice,  although  at  the  time  they  knew 
nothing  of  such  purchase.  The  purchaser,  by  taking  a 
deed  in  the  name  of  his  associates,  is  regarded  as  hav- 
ing acted  as  their  agent.  Notice  to  him,  therefore,  is 
equivalent  to  notice  to  them.  "It  would  indeed  be  singu- 
lar if  the  legal  effect  of  notice  could  be  obviated  by  so 
easy  a  subterfuge  as  the  insertion  of  the  names  of  other 
parties  in  the  conveyance."  ^ 

§  783.  Consulting-  attorney. — If  a  person,  before  mak- 
ing a  purchase  of  a  piece  of  land,  consults  with  an  attor- 

^  Cave  V.  Cave,  Law  R.  15  Ch.  639;  Frail  v.  Ellis,  16  Beav.  350;  Ken- 
nedy V.  Green,  3  Mylne  &  K.  699 ;  In  re  European  Bank,  Law  R.  5  Oh. 
358;  Waldy  v.  Gray,  Law  R.  20  Eq.  238,  251 ;  Hiorns  v.  Holtom,  16  Beav. 
259 ;  Ogilvie  v.  Jeaff  reson,  2  Giff .  353 ;  Winchester  v.  Susquehanna  R.  R.,  4 
Md.  231 ;  Fulton  Bank -v.  New  York  and  Sharon  C.  Co.,  4  Paige,  127; 
Hope  Fire  Ins.  Co.  v.  Cambrelling,  1  Hun,  493;  Barnes  v.  Trenton  Gaa 
Co.,  27  N.  J.  Eq.  (12  Green,  C.  E.)  33;  McCormick  v.  Wheeler,  36  111. 
114;  85  Am.  Dec.  3b8;  Rolland  v.  Hart,  Law  R.  6  Ch.  678;  Thompson  v. 
Cartwright,  2  De  Gex,  J.  &  S.  10;  Greenslade  v.  Dare,  20  Beav.  284; 
Spencer  v.  Tonham,  2  Jur.,  N.  S.,  865;  Hewitt  v.  Looseinoore,  9  Hare, 
449;  Robinson  v.  Briggs,  1  Smale  &  G.  188;  National  Life  Ins.  Co.  v. 
Minch,  53  N.  Y.  144;  Allen  v.  South  Boston  R.  Co.,  150  Mass.  200;  15 
Am.  St,  Rep.  175;  22  N.  E.  Rep.  917;  Innerarity  v.  Merchants'  Nat. 
Bank,  139  Mass.  332;  52  Am.  Rep.  710;  Frenkel  v.  Hudson,  82  Ala.  158; 
60  Am.  Rep.  736;  2  So.  Rep.  758;  DilUxway  r.  Butler,  135  Mass.  479;  At- 
lantic Nat.  Bank  v.  Harris,  118  Mass.  147.  But  the  fraud  must  be  inde- 
pendent in  its  character,  so  that  concealment  was  essential  to  its  suc- 
cess. Every  concealment  is  not  a  fraud  :  Atterbury  v.  Walles,  8  De  Gex, 
M.  &  G.  454;  Rolland  v.  Hart,  Law  R.  6  Ch.  678;  Boursot  v.  Savage,  Law 
E.  2  Eq.  134.  The  signing  of  a  deed  by  a  person  assuming  to  act  as  an 
agent  of  another  may  give  notice  of  the  interest  of  his  principal  in  the 
land:  Solari  v.  Snow,  101  Cal.  387. 

»  Stanley  v.  Green,  12  Cal.  148.  See  Wise  v.  Tripp,  13  Me.  9;  Ste- 
vens V.  Goodenough,  26  Vt.  676;  Cunningham  v.  Woodbridge,  76  Ga. 
302 ;  Littleton  v.  Giddings,  47  Tex.  109. 


i$7Sl.7S5  TTTE    DOCTRINE    OF    NOTICE.  1052 

iiov  Tor  the  purpose  of  having  him  examine  tlie  records 
to  see  what  conveyances  were  of  record,  he  is  not  charge- 
nhle  with  all  the  knowledge  which  the  attorney  may  pos- 
sess concerning  the  matter  about  which  such  purchaser  has 
consulted  him/  The  notice  to  the  agent  is  not  notice  to 
the  principal,  unless  it  is  present  in  his  mind  when  act- 
inia as  agent,  and  he  may  convey  his  information  without 
a  violation  of  professional  confidence.  Where,  by  mis- 
take, one  of  a  firm  of  attorneys  executes  a  total  instead 
of  a  partial  release  of  a  mortgage,  and  this  release  is  re- 
corded, and  afterward,  on  the  negotiation  of  another  loan, 
the  borrower  employs  the  same  firm  to  examine  the  title 
for  him,  but  the  examination  is  made  by  another  member 
of  the  lirm,  who  possessed  no  knowledge  of  the  prior 
transaction,  and  knew  nothing  of  the  title  except  what 
the  abstract  disclosed,  notice  of  the  mistake  in  making  a 
total  release  of  the  mortgage  cannot  be  charged  to  the 
borrower.^ 

§  784,  Notice  to  trustee. — Where  a  person  is  to  act 
as  trustee  by  an  agreement  between  the  grantor  and  cestui 
que  trust,  and  the  trustee  has  notice  of  the  fraudulent  in- 
tent with  which  the  grantor  executed  the  deed  of  convey- 
ance wlierein  he  is  named  as  trustee,  the  cestui  que  trust 
is  atfected  with  the  notice  in  this  respect  possessed  by 
the  trustee.^ 

§  785.  Agent  to  examine  title. — One  person  relied 
upon  another  to  take  a  mortgage,  and  to  see  that  the  title 
was  perfect.  It  was  held  that  the  former  to  this  extent 
made  the  latter  his  agent,  and  that  he  was  chargeable 
with  the  agent's  knowledge  of  a  pre-existing  mortgage.* 

'  Menley  v.  Zeigler,  23  Tex.  88. 

»  Wittenbrock  v.  Parker,  102  Gal.  93;  41  Am.  St.  Eep.  172.  See,  also, 
Arrinfiton  v.  Arrington,  114  N.  0.  151 ;  19  S.  E.  Rep.  351. 

*  Pope  V.  Pope,  40  Miss.  516.  Notice  to  the  trustee  is  generally  notice 
to  the  beneliciary:  Pope  v.  Pope,  40  Miss.  516;  Meyers  v.  Ross,  3  Head, 
59;  Stevens  i;.  Goodenough,  26  Vt.  676.  But  where  the  trustee  is  ap- 
pointed by  the  grantor  to  secure  a  debt,  see  Fargason  v.  Edrington,  49 
Ark.  207. 

*  Sowler  V.  Day,  58  Iowa,  252.     Notice  to  the  attorney  is  notice  to  the 


1053  THE  DOCTRINE  OF  NOTICE.      §§  786,  787 

§  786.  Advertisement  of  sale. — A  notice  stating  that 
certain  property  is  for  sale  may  be  as  effectual  for  the 
purpose  of  giving  notice  as  a  statement  from  the  owner 
himself.  The  agent  of  a  person  claiming  title  to  a  piece 
of  property  put  upon  the  premises  a  board  on  which  was 
printed :  "For  sale  by  S.  H.  Kerfoot  &  Co.,  48  Clark  Street." 
A  creditor  whose  judgment  lien  accrued  while  this  notice 
remained  posted,  was  held  to  be  notified  of  the  interest  of 
the  party  claiming  title.  The  extent  and  character  of  the 
title  could  have  been  ascertained  upon  inquiry  of 
the  agents,  and  the  judgment  creditor  therefore  could 
not  be  regarded  a  bona  fide  purchaser.^ 

§  787.  Resale  by  vendor. — Where  a  contract  for  the 
sale  of  real  estate  is  made,  and  the  vendor,  professing  to 
act  as  the  agent  of  the  original  vendee  under  verbal  au- 
thority, and  that  of  letters  subsequently  written,  resells 
the  premises,  and  executes  a  deed  therefor  to  a  second 
purchaser,  the  letters  must  be  looked  to  as  the  only  proper 
and  valid  source  of  authority.  If  these  letters  do  not  in 
fact  authorize  such  resale  and  conveyance,  and  the  pur- 
chaser is  aware  of  the  contents  of  such  letters,  and  of  the 
terms  of  the  original  contract,  he  is  not  a  bona  fide  pur- 
chaser witliout  notice.  "In  such  case,  he  is  to  be  treated 
as  a  trustee  of  the  first  vendee;  he  stands  upon  the  same 

client.  See  Edwards  v.  Hillier,  70  Miss.  803;  13  So.  Rep.  692;  Smith  v. 
Aver,  101  U.  S.  320;  Bunker  v.  Gordon,  81  Me.  66;  16  Atl.  Rep.  341; 
Shoemaker.  Smith,  80  Iowa,  655;  12  N.  W.  Rep.  297;  Jones  v.  Bam- 
ford,  21  Iowa,  217;  Jackson  v.  Van  Valkenburgh,  8  Cow.  260;  May  v. 
Le  Claire,  11  Wall.  217;  Maxfield  v.  Burton,  17  L.  R.  Eq.  15. 

^  Hatch  V.  Bigelow,  39  111.  546.  The  court,  per  Mr.  Justice  Breese, 
said:  "A  purchaser  is  held  affected  with  notice  of  all  that  is  patent  on 
an  examination  of  the  premises  he  is  about  to  buy.  Is  not,  then,  this 
advertising  board  to  be  regarded  in  precisely  the  same  light  as  if  a  sub- 
sequent purchaser  had  been  informed  in  writing  that  Kerfoot  claimed 
the  right  to  sell  the  lot,  and  therefore  claimed  some  title  or  interest  in 
it?  And  does  not  such  notice  put  the  purchaser  upon  inquiry  as  to  that 
interest,  whatever  it  may  be,  and  whether  held  by  Kerfoot,  in  his  own 
right,  or  as  agent  of  another?  A  prudent  man  would  iuive  gone  to  Ker- 
foot, whose  place  of  business  is  given,  and  ascertained  the  nature  of  his 
claim  before  completing  a  purchase." 


§   TvSS  THE    POOTUINE    OF    NOTICE.  1054 

vquity  i\s  bis  vendor,  and  will  be  decreed  to  convey  in  tbe 
same  manner  as  tbe  original  vendor  under  wbom  be 
claims.''  ^ 

PART  IV. 

LIS   PENDENS. 

§  788.  Doctrine  of  lis  pendens. — "It  is  tbe  manifest 
policy  of  tbe  law  tbat  tbere  sbould  be  an  end  to  litigation, 
l)ut  tbis  manifest  policy  would  be  easily  tbwarted  if,  dur- 
ing tbe  pendency  of  suit,  a  stranger  to  tbe  suit  could,  by 
purchase  from  one  of  tbe  suitors,  acquire  new  and  inde- 
pendent rigbts — rigbts  unaffected  by  and  not  subject  to 
tbe  litigation  tben  in  progress."^  Hence  arises  tbe  doc- 
trine of  lis  pendens.  During  tbe  pendency  of  a  suit  neitber 
])arty  sbould  be  permitted  to  convey  tbe  property  in  con- 
troversy so  as  injuriously  to  affect  tbe  rigbts  of  bis  ad- 
versary. It  is  sometimes  said  tbat  tbe  rules  as  to  the 
effect  of  a  pending  suit  are  founded  upon  tbe  doctrine  of 
constructive  notice,  but  tbe  better  view  seems  to  be  tbat 
tbese  rules  rest  ratber  on  grounds  of  public  policy.  "It 
is  obvious  that  tbere  must  be  cases  to  which  tbe  doctrine 
sbould  apply;  otherwise  tbe  ends  of  justice  might  be  de- 
feated; the  decrees  of  the  court  would  be  evaded,  and  tbe 
party  having  tbe  strongest  inducement  to  prolong  litiga- 
tion would  not  unfrequently  find  it  in  his  power  to  do  so 
to  an  unlimited  extent.  It  is  a  rule  founded  upon  a  great 
public  policy."*  "Tlie  doctrine  of  lis  pendens  is  not,  as  I 
conceive,  founded  upon  any  of  tbe  peculiar  tenets  of  a 
court  of  equity  as  to  implied  or  constructive  notice.  It 
is,  as  I  think,  a  doctrine  common  to  tbe  courts,  both  of 
law  and  of  equity,  and  rests,  as  I  apprehend,  upon  this 
foundation — tbat  it  would  plainly  be  impossible  tbat  any 
action  or  suit  could  be  brought  to  a  successful  termina- 
tion, if  alienations  pendente  lite  were  permitted  to  prevail. 
The  plaintiff  would  be  liable  in  every  case  to  be  defeated 
by  the  defendants  alienating  before  tbe  judgment  or  de- 

*  Smoot  V.  Rea,  19  Md.  898,  412. 

*  Real  Estate  Savings  Inst.  v.  Collonious,  63  Mo.  290,  294. 
»  Kurton  V.  Bilge,  35  Conn.  250,  258,  per  Carpenter,  J. 


1055  THE  DOCTRINE  OF  NOTICE.  §  788 

cree,  and  would  be  driven  to  commence  bis  proceedings 
de  novo,  subject  again  to  be  defeated  by  the  same  course 
of  proceeding."  ^  Aside  from  any  statutory  provision,  the 
doctrine  of  lis  pendens  is  everywbere  recognized.^  The 
operation  of  a  lis  pendens  extends  also  to  the  grantee  of  a 
grantee.' 

^  Bellamy  v.  Sabine,  1  De  Gex  &  J.  566,  584,  per  Lord  Justice  Turner, 

*  Murray  v.  Finster,  2  Johns.  Ch.  155;  Murray  v.  Ballou,  1  Johns.  Ch. 
566;  Murray  v.  Lylburn,  2  Johns.  Ch.  441;  Hopkins  v.  McLaren,  4 
Cowen,  667;  Gossom  v.  Donaldson,  18  Mon.  B.  230;  68  Am.  Dec.  723; 
Green  v.  White,  7  Blackf.  242;  Kern  v.  Hazlerigg,  11  Ind.  443;  71  Am. 
Dec.  360;  Ashley  v.  Cunningham,  16  Ark.  168;  Jackson  v.  Andrews,  7 
Wend.  152;  22  Am.  Dec.  574;  Seabrook  v.  Brady,  47  Ga.  650;  !-edgwick 
V.  Cleveland,  7  Paige,  287;  Cook  v.  Mancius,  5  Johns.  Ch.  89;  Turner  v. 
Babb,  60  Mo.  342;  Van  Hook  v.  Throckmorton,  8  Paige,  33;  Harrington 
V.  Slade,  22  Barb.  161 ;  McGregor  v.  McGregor,  21  Iowa,  441 ;  Cooley  v. 
Brayton,  16  Iowa,  10;  Loomis  v.  Riley,  24  111.  307;  Whiting  v.  Beebe,  7 
Eng.  421;  White  v.  Carpenter,  2  Paige,  217;  Griffith  v.  Griffith,  1  Hoff. 
Ch.  153;  Chapman  v.  West,  17  N.  Y.  125;  Pratt  v.  Hoag,  5  Duer,  631; 
Borrowscale  v.  Tuttle,  5  Allen,  377;  Hersey  v.  Turbett,  27  Pa.  St.  418; 
Tredway  v.  McDonald,  51  Iowa,  663;  Culpepper  v.  Aston,  2  Ch.  Cas. 
115;  Garth  v.  Ward,  2  Atk.  174;  Roberts  v.  Fleming,  53  111.  196;  Gilman 
V.  Hamilton,  16  111.  225;  Jackson  v.  Warren,  32  111.  331 ;  Traitt  v.  Truitt, 
38  Ind.  16;  Preston  v.  Tubbin,  1  Vern.  286  J  Higgins  v.  Shaw,  2  Dru.  & 
War.  356;  Patterson  v.  Brown,  32  N.  Y.  81;  Mitchell  v.  Smith,  53  N.  Y. 
413;  O'Reilly  v.  Nicholson,  45  Mo.  160;  Tharpe  v.  Dunlap,  4  Heisk.  674; 
Blanchard  v.  Ware,  43  Iowa,  530;  Holman  v.  Patterson's  Heirs,  29  Ark. 
357;  Sorrell  v.  Carpenter,  2  P.  Wms.  482;  W^orsley  v.  Earl  of  Scarbor- 
ough, 3  Atk.  392;  Brundage  v.  Biggs,  25  Ohio  St.  652;  Hayden  v.  Buck- 
lin,  9  Paige,  512;  Haven  v.  Adams,  8  Allen,  363;  McPherson  v.  Hoasel, 
2  Beas.  299;  Tongue  v.  Morton,  6  Har.  &  J.  21 ;  Ashley  v.  Cunningham, 
16  Ark.  168;  Edwards  v.  Banksmith,  35  Ga.  213;  Choudron  v.  Magee,  « 
Ala.  570;  Knowles  v.  Rablin,  20  Iowa,  101;  Leitch  v.  Wells,  48  N.  Y. 
585;  Ayrault  v.  Murphy,  54  N.  Y.  2U2;  Salisbury  v.  Moras,  7  Lans.  359; 
Jackson  v.  Losee,  4  Sand.  Ch.  381;  Long  v.  Neville,  29  Cal.  135;  Parks 
V.  Jackson,  11  Wend.  442;  25  Am.  Dec.  656;  Jackson  v.  Andrews.  7 
Wend.  152;  22  Am.  Dec.  574;  Wattson  v.  Dowling,  26  Cal.  124;  Tyler  v. 
Thomas,  25  Beav.  47;  Young  v.  Guy,  23  Hun,  1 ;  Newman  v.  Chapman, 
2  Rand.  93;  14  Am.  Dec.  766;  Lawrence  v.  Conklin,  17  Hun,  228;  Allen 
V.  Poole,  54  Miss.  323;  Centers.  Planters'  and  Merchants'  Bank,  22  Ala. 
743;  Arringlon  v.  Arringtm,  114  N.  C.  151;  19  S.  E.  Rep.  351;  Colling- 
wood  V.  Brown,  106  N.  C.  362;  10  S.  E.  Rep.  868;  Si-encer  v.  Credle.  102 
N.  C.  63';  8  S.  E.  Rep.  901;  Hart  v.  Steedman,  98  Mo.  452;  Dwyer  v. 
Rippetoe,  72  Tex.  520;  Cassidy  v.  Kluge,  73  Tex.  154. 

*  Norton  o.  Birge,  36  Conn.  250.  But  see  French  v.  Loyal  Co.,  5  Leigh, 
627. 


c.   -j-v^g  THE    DOCTRINE    OF    NOTICE.  1056 

^   78J).      Alt<Miati«>ii   void    as  against   judgment. — If    a 

(le'foiiilant  were  allowed  to  execute  an  effectual  and  opera- 
tive deed  of  the  land  in  controversy  during  the  pendency 
of  a  suit  affecting  its  title,  a  judgment  in   favor  of  the 
plaintiff  would  be  of  little  or  no  value.     A  deed   under 
these   circumstances,    though    good  between  the    parties 
themselves,  can  have  no  effect  as  against  a  judgment  or 
decree    that  may  be  ultimately  rendered  in   such    suit.' 
"The  principle  that  the  purchaser  of  the  subject-matter 
of  a  suit  pendente  lite  acquires  no  interest  as  against  the 
plaintiff's  title,  whether  legal  or  equitable,  is  too  well  es- 
tablished to  be  now  questioned.     Such  sale  as  against  the 
plaintiff  is  considered  a  nullity,  and  he  is  not  bound  to 
take  any  notice  of  it.     The  decree  of  the  court  binds  the 
property  in  the  hands  of  such  purchaser,  although  he  is 
no  party  to  the  suit,  and  paid  a  full  price  for  it,  and  had 
in  fact  no  notice  of  the  pendency  of  the  suit,  or  the  claim 
of  the  plaintiff.     He  is  chargeable  with  constructive  notice 
of  the  pendency  of  such  suit,  so  as  to  render  his  interest 
in  the  subject  of   it   liable  to  its  event.     This  rule  may 
sometimes  produce  individual  hardship  in  its  application 
to  a  purchaser,  for  a  full  consideration,  and  without  actual 
notice;  but  if  it  were  not  adopted  and  adhered  to,  there 
would  be  no  end  to  any  suit.     The  justice  of  the  court 
would  be  wholly  evaded  by  aliening  the  lands  after  sub- 
poena served  and  the  suitor  subjected  to  great  delay,  ex- 
pense, and    inconvenience,  without  any  certainty    of  at 
last  securing  his  interest.     It  is  for  these  reasons — reasons 
founded  on  public  utility  and  general  convenience — that 

1  Calderwood  v.  Tevis,  23  Cal.  335;  Sharp  v.  Lumley,  34  Oal.  611; 
Montgomery  v.  Byers,  21  Oal.  107 ;  Horn  v.  Jones,  28  Cal.  194 ;  White- 
side V.  Haselton,  110  U.  S.  296;  Snowman  v.  Harford,  62  Me.  434;  Lee 
V.  Salinas,  15  Tex.  495;  Bayer  v.  Cockerill,  3  Kan.  282;  Copenheaver  v. 
Huffaker,  6  Mon.  B,  18;  Galbreath  v.  Estes,  38  Ark.  599;  Jackson  v. 
Andrews,  7  Wend.  152;  22  Am.  Dec.  574;  Shotwell  v.  Lawson,  30  Miss. 
27 ;  64  Am.  Dec.  145;  Hurl  butt  v.  Butenop,  27  Cal.  50;  Tilton  m  Cofleld, 
93  U.  S.  163;  Jackson  v.  Warren,  32  111,  331;  Meux  v.  Anthony,  6  Eng. 
411;  52  Am.  Dec.  274;  Walden  v.  Bodley's  Heirs,  9  How.  34;  Inloe's 
Lessee  v.  Harvey,  11  Md.  519;  Gregory  v.  Haynes,  13  Cal.  594;  Haynes 
V.  Calderwood,  23  Oal.  409;  Curtis  v.  Sutter,  15  Cal.  263. 


1057  THE    DOCTRINE    OF    NOTICE.  §§790,791 

the  courts  of  equity  of  England,  and  of  the  United  States, 
whenever  the  question  has  been  made,  have  uniformly- 
held  that  he  who  purchases  during  the  pendenc}'  of  a  suit 
is  chargeable  with  constructive  notice  of  tlie  rights  of  the 
parties  litigant,  and  bound  by  the  decision  that  may  be 
made  against  the  person  from  whom  he  derives  title."  ^ 

§  790.  Subject  continued. — If,  while  an  action  for  the 
foreclosure  of  a  mortgage  is  pending,  a  person  with  notice  of 
the  suit  takes  a  deed  of  a  portion  or  of  tlie  whole  of  the 
mortgaged  premises,  a  purchaser  under  the  decree  has 
the  same  right  to  the  issuance  of  a  writ  of  assistance 
against  such  grantee  as  he  has  against  the  grantor.^ 
Where  a  person  purchases  a  piece  of  land  at  a  sale  under 
a  decree  of  foreclosure,  he  is  chargeable  with  notice  of  the 
rights  of  the  plaintifi"  in  another  suit  for  the  foreclosure 
of  another  mortgage  on  the  same  premises,  and  is  bound 
by  the  decree  rendered  subsequently  in  the  second  suit, 
although  he  is  not  made  a  party  to  it.^  One  who  pur- 
chases the  land  pending  the  litigation  from  one  of  the 
parties  to  the  suit,  and  claiming  under  his  deed  alone,  is 
as  much  bound  as  his  grantor.* 

§  791.  Grantee  of  party  to  partition  suit. — Where  a 
suit  for  partition  is  pending,  a  person  who  takes  a  deed 
from  one  of  the  parties  to  such  suit  for  his  interest  in 
the  land,  accjuires  a  title  or  interest  in  the  premises,  sub- 

*  Heirs  of  Ludlow  v.  Kidd's  Executors,  3  Ohio,  541,  542,  per  Sher- 
man, J. 

■■'  Montgomery  v.  Byers,  21  Cal.  107;  Montgomery  v,  Middlemiss,  21 
Cal.  103;  81  Am.  Dec.  14G.  See,  also,  Walker  v.  Douglas,  89  111.  425; 
Barelli  v.  Delassus,  16  La.  Ann.  280;  Boulden  v.  Lanahan,  29  Md,  200; 
Masson  v.  Saloy,  12  La.  Ann.  776;  Youngman  v.  Elmira  R.  R.  Co.,  65  Pa. 
St.  278. 

'  Cooley  V.  Brayton,  16  Iowa,  10.  And  that  purchasers  at  execution 
Bales  are  affected  by  the  notice  of  a  lis  pendens,  see,  also.  Hart  v.  Mar- 
shall, 4  Minn.  294;  Hall  v.  Jack,  32  Md.  253;  Fish  v.  Ravesies,  32  Ala. 
451;  Crooker  v.  Crooker,  57  Me.  395;  Hersey  v.  Turbett,  27  Pa.  St.  418; 
Mcpherson  z;.  Housel,  2  Beasl.  299;  Steele  v.  Taylor,  1  Minn.  274;  Berry 
V.  Whitaker,  58  Me.  422. 

*  Wei  ton  V.  Cook,  61  Cal.  481. 

Dkeik),  Vol.  IL— 67 


§  702  THE  DOCTRINE  OF  NOTICE.  1058 

ject  to  such  decree  as  may  be  finally  rendered.  The 
grantee  by  such  purchase  pendente  lite  becomes  a  party  to 
the  suit,  whether  he  is  a  party  to  the  record  or  not.  It 
follows  that  whatever  portion  of  the  common  property 
may  be  set  off  in  severalty  to  his  grantor,  inures  to  the 
grantee's  benefit.  So,  if  during  the  pendency  of  such  a 
suit  for  partition,  a  mortgage  be  made  on  an  undivided 
interest  of  a  tenant  in  common,  the  mortgage,  after  par- 
tition is  made,  is  confined  to  the  interest  awarded  to 
the  tenant  in  common  who  executed  the  mortgage.^  An 
action  was  brought  against  a  purchaser  at  a  partition 
sale  to  set  aside  the  sale  on  account  of  fraud.  The  de- 
cision of  the  lower  court  was  in  favor  of  the  defendant, 
but,  on  appeal,  the  decision  was  reversed,  and  after  the 
reversal  the  defendant  executed  a  deed  of  trust  upon  the 
land  involved  in  the  suit.  A  few  days  after  the  time 
the  deed  bore  date,  the  cause  was  remanded,  the  prior 
sale  canceled,  and  the  property  resold.  It  was  held  that 
one  who  derived  title  under  the  deed  of  trust  took  with 
notice  of  the  lis  pendens,  and  could  not  maintain  eject- 
ment against  the  person  purchasing  at  the  second  judi- 
cial sale.^  A  purchaser  at  a  tax  sale  obtained  a  decree 
by  default  quieting  his  title  against  one  who  had,  in 
fact,  previously  conveyed  the  land,  but  the  deed  of  the 
grantee  had  not  been  recorded  and  the  grantee  was  not 
made  a  party.  The  decree  was  held  not  to  bind  the 
grantee,  and  his  neglect  to  record  the  deed  could  not 
affect  him.* 

§   792.     Purchaser  from  person  not  a  party  to  the  suit. 

A  person  who  purchases  a  tract  of  land  from  one  who  is 
not  a  party  to  the  suit  affecting  it,  or  a  privy  to  such 
party,  is  not  charged  with  constructive  notice  of  the  lis 
•pendens}    A  held  a  mortgage  upon  a  tract  of  land,  and 

*  Loomis  V.  Riley,  24  111.  307. 

»  Real  Estate  Saving  Inst.  v.  Collonious,  63  Mo.  290. 

*  Smith  V.  Williams,  44  Mich.  240. 

*  Scarlett  v.  Gorham,  28  111.  319;  Miller  v.  Sherry,  2  Wall.  237;  Parks 
V.  Jackson,  11  Wend.  442;  25  Am.  Dec.  656;  AUen  v.  Morris,  34  N.  J.  L. 


1059  THE  DOCTRINE  OF  NOTICE.  §  792  a 

subsequently  B  acquired  a  lien  on  the  same  land,  of 
which  A  had  knowledge.  B  began  proceedings  to  sub- 
ject the  land  to  his  lien,  and  the  tract,  which  had  been 
divided  into  fifty-six  building  lots,  was  sold  by  a  master 
to  C.  Some  of  the  lots  were  mortgaged  to  B  by  C,  and 
the  remaining  lots  were  discharged  by  the  sale  from  B's 
lien.  A  had  no  notice  of  the  suit  or  of  any  of  the  subse- 
quent proceedings,  but  the  deeds  and  mortgages  in  pur- 
suance of  the  sale  were  duly  recorded.  Subsequently,  B 
foreclosed  the  mortgage  executed  by  C,  and  at  the  begin- 
ning of  the  suit  filed  a  statutory  notice  of  lis  pendens.  A, 
who  had  no  actual  notice  of  this  suit,  released  to  C,  while 
the  suit  was  pending,  forty-two  of  the  fifty-six  lots.  The 
fourteen  lots  still  left  subject  to  A's  mortgage  were  a  part 
of  those  which  C  had  mortgaged  to  B,  and  all  of  C's  lots 
not  mortgaged  to  B  were  released  by  A.  The  court  held 
that  A  was  not  affected  with  constructive  notice  of  the 
first  suit  of  B  or  of  the  sale  under  his  decree;  that  the 
registration  of  the  deeds  to  C  and  of  C's  mortgages  was 
not  notice  to  A,  and  A,  when  he  released,  was  not  obliged 
to  search  the  records  for  deeds  and  encumbrances  later 
tliau  his  mortgage;  and  that  neither  the  foreclosure  suit 
of  B,  nor  the  notice  of  lis  pendens  filed,  could  charge  A 
with  notice  of  B's  proceedings,  or  of  his  rights  under  C's 
mortgages.^ 

§  792  a.  Unrecorded  deed. — As  has  been  said  in 
other  sections,  unless  some  statutory  provision  controls 
the  matter,  an  unrecorded  deed  is  valid  between  the  par- 
ties and  those  who  are  affected  with  notice,  and  is  void 
only  against  subsequent  purchasers  in  good  faith  and 
for  value.  But  what  rights  has  a  grantee  under  an 
unrecorded  deed  as  against  a  prior  record  of  a  lis  pendens 
filed  in  a  suit  to  determine  a  trust  or  the  interests  of 
the   respective   parties  to  the  suit  in  the  land?     Is  he 

159;  Stuyvesant  v.  Hone,  1  Sand.  Ch.  419;  Herrington  v.  Herrington,  27 
Mo.  560;  French  v.  The  Loyal  Co.,  5  Leigh,  627  ;  ParaouB  v.  Hoyt,  24  Iowa, 
154;  Chvrkson  v.  Morgan,  6  B.  Mon.  44L 
*  Stuyvesant  v.  Hone,  1  Sand.  Ch.  419. 


§§  703,  794  TlIK    DOCTKINE    OF    NOTICI 


lOGO 


Inmiul  by  the  judgnient  to  wliicli  he  is  not  a  party,  or 
are  his  rights  uiiaflccteJ  ?  In  many  Slates  this  ques- 
tion is  cleieriuincd  by  statute,  but  where  the  statutes  are 
silent  the  rule  is  that  notice  of  a  lis  pendens  is  not  a  con- 
veyance, and  that  it  is  not  intended  to  confer  new  rights 
on  the  plaintiii;  but  to  limit  those  which  he  had  before, 
and  hence  whether  a  deed  is  or  is  not  recorded  is  imma- 
terial. A  grantee  under  an  unrecorded  deed  is  not  affected 
by  the  lis  pendens.^ 

§  7f)3.  Cross-complaint.  —  A  person  maybe  charged 
with  notice  of  a  lis  pendens  affecting  land  by  the  aver- 
ments of  a  cross-complaint  as  well  as  by  the  complaint 
itself.  A  plaintiff  filed  a  petition  for  the  settlement  of  a 
partnership  theretofore  existing  between  him  and  the 
defendant.  The  defendant  in  his  answer,  among  other 
things,  set  up  by  way  of  cross-petition  a  misapplication 
of  partnership  funds  by  the  plaintiff,  which  he  had 
fraudulently  caused  to  be  conveyed  to  his  wife.  The  de- 
fendant asked  in  his  answer  that  the  plaintiff's  wife  and 
the  person  from  whom  the  property  was  purchased  b& 
made  parties,  and  that  the  property  to  which  she  held 
the  legal  title  be  subjected  to  the  purposes  of  the  partner- 
ship. The  court  ordered  her  and  her  grantor  to  be  made 
parties,  and  she,  by  her  attorney,  applied  for  leave  to  an- 
swer, which  was  granted.  It  was  held  that  by  obtaining 
permission  to  answer,  the  wife  entered  her  appearance  as 
a  party,  and  that  a  purchaser  who  subsequently  obtained 
title  to  the  land  from  the  husband  and  wife  was  affected 
with  notice  of  the  suit.^ 

§  794.     Principle   applies   also   to  actions  at  law. — It 

has  sometimes  been  asserted  that  the  doctrine  of  lis  pen- 

^  Warnock  v.  Harlow,  96  Cal.  298;  31  Am.  St.  Rep.  209;  Hammond  v. 
Paxton,  58  Mich.  393;  Vose  v.  Martin,  4  Gush.  27;  50  Am.  Dec.  750; 
Smith  V.  Williams,  44  Mich.  240;  Hall  v.  Nelson,  23  Barb.  88;  Freeman 
on  Judgments,  §201.  But  see  contra:  Smith  v.  Hodson,  78  Me.  180;, 
Norton  v.  Birge,  35  Conn.  250. 

'  Brundage  v.  Biggs,  25  Ohio  St.  652. 


1061  THE  DOCTRINE  OP  NOTICE.  §  794 

dens  applies  exclusively  to  equitable  suits. ^  But  it  is 
now  established  that  the  principle  applies  to  actions 
at  law  as  well.  "  This  principle  is  not  peculiar  to 
courts  of  chancery;  but  the  maxim  that  pendente  lite 
nihil  innovetur,  is  applied  in  real  and  mixed  actions  by 
the  common  law."^  A  executed  a  deed  to  B,  B  executed 
a  deed  to  C,  and  C  executed  a  deed  to  D.  All  these  were 
fraudulent.  E,  who  possessed  no  actual  knowledge  of 
any  defect  or  infirmity  in  the  title,  took  a  mortgage  from 
C.  The  records  showed  at  the  time  he  took  the  mortgage 
that  the  creditors  of  A  had  levied  attachments  on  the 
property.  The  law  provided  that  such  attachments  might 
be  made  the  basis  of  proceedings  in  insolvency  in  the 
probate  court,  the  institution  of  which  would  dissolve  the 
attachments.  As  a  matter  of  fact  insolvency  proceedings 
had  been  instituted,  but  E  took  his  mortgage  with  the 
knowledge  that  such  attachments  had  been  levied,  and 
had  subsequently  been  discontinued;  but  he  made  no 
inquiry  to  ascertain  whether  insolvency  proceedings  had 
been  commenced.  The  trustee  in  insolvency  had  brought 
a  bill  in  equity  against  B  to  set  aside  the  fraudulent  deed 
to  him,  which  suit  was  j^ending  when  E  took  his  mort- 
gage. The  deed  of  B  to  C  was  executed  and  delivered 
before  the  commencement  of  the  suit,  but  was  not  re- 
corded or  known  to  the  trustee  until  a  long  time  after  the 
institution  of  the  suit.  The  doctrine  of  notice  of  lis  pen- 
dens  was  applied  to  the  title  acquired  by  E,  and  it  was 
said  that  if  he  was  not  fully  chargeable  with  notice  of  the 
rights  of  the  trustee  in  insolvency,  the  application  of  tho 
doctrine  produced  no  hardship.* 

»  King  V.  Bill,  23  Conn.  593. 

*  iSecombe  v.  Steele,  20  How.  94,  106,  per  Campbell,  Jj  Bellamy  v. 
Sabine,  1  De  Gex  &  J.  584. 

"  Norton  v.  Birge,  35  Conn.  250.  The  court  distinguish  this  case  from 
King  V.  Bill,  28  Conn.  593.  See,  also,  Sheridan  v.  Andrews,  49  N.  Y. 
478.  Speaking  of  the  effect  of  lin  pendens,  Green,  J.,  in  Newman  v. 
Chapman,  2  Kand.  93,  100,  14  Am.  Dec.  766,  said:  "Lord  Hardwicke,  in 
the  leading  case  of  Le  Neve  v.  Lc  Neve,  3  Atk.  646,  declared  that  the 
statutes  of  registry  in  England  (which,  as  to  the  matter  under  consider- 
ation, are  the  same  in  effect  aa  our  btutute),  only  vested  the  legal  title 


g  71J5  THE    DOCTRINE    OP    NOTICE.  10G2 

§  795.  Actions  of  ejectment.— Where  an  action  of 
ejectment  1ms  been  commenced  against  the  person  in 
possession  of  the  property,    one  who  acquires  possession 

in  the  snbsoquent  purchaser,  and  left  the  case  'open  to  all  equity';  and 
in  that  case,  he  relieved  against  a  subsequent  purchaser,  upon  condruct- 
ive,  and  not'upon  actual  notice,  the  notice  being  to  an  agent  of  the  pur- 
chaser.   A  lis  pendens  has  always  been  spoken  of  in  the  English  court 
of  chancery  as  a  constructive  notice  to  all  the  world,  as  all  m-n  are 
bound  and  presumed  to  take  notice  of  the  proceedings  of  a  court  of  jus- 
tice.   If  these  propositions  were  universally  true,  it  would  seem  to  fol- 
low "that  a  hte  pendente  purchaser  was  a  purchaser  with  notice,  and  would 
take  the  property  subject  to  the  claims  of  the  plaintiff  in  the  suit  as  the 
defendant  lield  it.    In  all  questions  of  fact,  the  existence  of  the  matter  in 
question  may  be  proved  by  direct  evidence,  or  by  proof  of  the  other  facts, 
from  which  it  may  justly  be  inferred  that  the  fact  in  question  does  ex- 
ist.   A  fact  thus  proved  by  circumstantial  evidence,  is  taken  to  exist 
for  all  purposes  as  if  it  were  proved  by  direct   evidence.     I  cannot, 
therefore,  feel   the  force  of  the  observation  frequently  thrown  out  in 
modern  cas-es,  thata  notice  to  affect  a  subsequent  purchaser  after  an 
unregistered  deed  must  be  actual,  and  such  as  to  affect  his  conscience, 
and  not  constructive.    A  notice    proved    by  circumstances  to  exist,  af- 
fects the  conscience  of  the  party  as  much  as  if  proved  by  direct  evi- 
dence.   In  all  other  cases,  a  purchaser  of  a  legal  estate  with  notice  of  a 
subsisting  equity,  is  bound  by  constructive,  as  well  as  by  actual,  notice; 
and  that  because  his  conscience  is  affected,  and  he  is  guilty  of  a  fraud. 
Without  fraud  on  his  part,  his  legal  title  ought  to  prevail.     I  see  no 
reason  why  a  difference  should  be  made  between  the  case  of  a  purchaser 
after  an  unregistered  deed,  and  a  purcliaser  of  a  legal  title,  subject  to 
anv  other  equity  as  to  the  proof  of  the  notice  which  ought  to  be  held  to 
bind  them.    This  distinction  between  an  actual  and  constructive  notice, 
in  the  case  of  a  purchaser  after  an  unregistered  deed,  seems  to  have  pro- 
ceeded from  a  doubt  whether  the  relief  given  in  the  early  cases  upon 
that  subject,  had  not  been  in  opposition  to  the  spirit  and  the  policy  as 
well  as  the  letter  of  the  statutes  of  registry.    The  rule,  as  to  the  effect  of 
a  lis  pendens,  is  founded  upon  the  necessity  of  such  a  ruie  to  give  effect  to 
the  proceedings  of  courts  of  justice.     Without  it,  the  administration  of 
justice  might,  in  all  cases,  be  frustrated  by  successive  alienations  of  the 
property,  which  was  the  object  of  litigation  pending  the  suit,  so  that 
every  judgment  and  decree  would  be  rendered  abortive  where  the  re- 
covery of  specific  property  was  the  object.     This  necessity  is  so  obvious, 
that  there  was  no  occasion  to  resort  to  the  presumption  that  the  pur- 
chaser really  had,  or  by  inquiry  might  have  had,  notice  of  the  pendency 
of  the  Buit  to  justify  tlie  existence  of  the  rule.     In  fact,  it  applied  in 
cases  in  which  there  was  a  physical  impossibility  that  the  purchaser 
could  know,  with  any  possible  diligence  on  his  part,  of  the  existence  of 
the  suit,  unless  all  contracts  were  made  in  the  office  from  which  the  writ 
issued,  and  on  the  last  moment  of  the  day.     For  at  common  law  the  writ 
■was  pending  from  the  first  moment  of  the  day  on  which  it  was  issued 


1063  THE    DOCTRINE    OF    NOTICE.  §  795 

from  the  defendant  pendente  lite  will  be  bound  by  the 
judgment  that  may  be  recovered  in  the  ejectment  suit, 
to    the  same    extent  as   the  defendant.     Although    such 

and  bore  teate;  and  a  purchaser  on  or  after  that  day,  held  the  property 
subject  to  the  execution  upon  the  judgment  in  that  suit  as  the  defend- 
ant would  have  held  it  if  no  alienation  had  been  made.  The  court  of 
chancery  adopted  the  rule  in  analogy  to  the  common  law;  but  relaxed 
in  some  degree  the  severity  of  the  common  law.  For  no  lis  pendens  ex- 
isted until  the  service  of  the  subpoena  and  bill  filed;  but  it  existed  from 
the  service  of  the  subpoena,  although  the  bill  was  not  filed  until  long 
after;  so  that  a  purchaser  after  service  of  the  subpcena,  and  before  the 
bill  was  filed  would,  after  the  filing  of  the  bill,  be  deemed  to  be  a  lite 
pendente  purchaser,  and  as  such  be  bound  by  the  proceedings  in  the  suit, 
although  the  subpcena  gave  him  no  information  as  to  the  subject  of  the 
suit.  A  subpcena  might  be  served  the  very  day  on  which  it  was  sued 
out,  and  there  is  an  instance  in  the  English  books  of  a  purchaser  who 
purchased  on  the  day  that  the  subpoena  was  served  without  actual 
notice,  and  who  lost  his  purchase  by  force  of  this  rule  of  law.  This 
principle,  however  necessary,  was  harsh  in  its  effects  upon  bona 
fide  purchasers,  and  was  confined  in  its  operation  to  the  extent  of  the 
policy  on  which  it  was  founded ;  that  is,  to  the  giving  full  effect  to 
the  judgment  or  decree  which  might  be  rendered  in  the  suit  pending 
at  the  time  of  the  purchase.  As  a  proof  of  this,  if  the  suit  was  not 
prosecuted  with  effect,  as  if  a  suit  at  law  was  discontinued,  or  the  plain- 
tiff suffered  a  nonsuit,  or  if  a  suit  in  chancery  was  dismissed  for  want 
of  prosecution,  or  for  any  other  cause  not  upon  the  merits,  or  if  at 
law  or  in  chancery  a  suit  abated,  although  in  all  these  cases  the  plaintiff 
or  his  proper  representative  might  bring  a  new  suit  for  the  same  cause, 
he  must  make  the  one  who  purchased  pending  the  former  suit  a  party ; 
and  in  this  new  suit  such  purchaser  would  not  be  at  all  affected  by  the 
pendency  of  the  former  suit  at  the  time  of  his  purchase.  In  the  case 
of  an  abatement,  however,  the  original  suit  might  be  continued  in  chan- 
cery by  revivor,  or  at  law,  in  real  actions,  abated  by  the  death  of  a  party, 
hy  jouraies  accounts,  and  the  purchaser  still  be  bound  by  the  final  judg- 
ment or  decree.  If  a  suit  be  brought  against  the  heir  upon  the  obliga- 
tion of  his  ancestor  binding  his  heirs,  and  he  alienates  the  land 
descended  pending  the  writ  upon  a  judgment  in  that  suit,  tiie  lands  in  the 
hands  of  the  purchaser  would  be  liable  to  be  extended  in  satisfaction  of 
the  debt.  But  if  that  suit  were  discontinued,  abated,  or  the  plaintiff 
suffered  a  nonsuit  in  a  new  action  for  the  same  cause,  the  purchaser 
would  not  be  affected  by  the  pendency  of  the  former  suit  at  the  time  of 
his  purchase;  and  if  he  could  be  reached  at  law,  in  equity  it  could  only 
be  upon  proof  of  actual  notice  and  fraud.  If  a  lis  pendens  was  notice 
then,  as  a  notice  at  or  before  the  purchase  would,  in  other  cases,  bind  the 
purchaser  in  any  suit  in  equity  prosecuted  at  any  time  thereafter  to  as- 
sert the  right  of  which  he  had  notice,  so  ought  the  lis  pendens  to 
bind  him  in  any  subsequent  suit  prosecuted  for  the  same  cause; 
but  it  does    not.     Again,   a    bill  of  discovery,  or  to  perpetuate    the 


§  790  TITK    DOCTRINE    OF    NOTICE.  1064 

jrrantoo  or  assignee  nuiy  not  be  made  a  party  to  the  snit, 
lio  may  be  ejected  under  the  judgment  rendered  against 
his  grantor  or  assignor.  If  this  were  not  the  law,  the 
defendant  could  compel  the  plaintiff  to  commence  a  new 
action  as  often  as  he  made  an  assignment.^  But  the  judg- 
ment binds  only  the  parties  and  their  privies.  One 
whose  possession  is  distinct  from  that  for  which  the 
action  is  brought,  cannot  be  ousted  by  an  execution  in 
such  action.-  The  assignee,  when  subject  to  the  judgment, 
is  liable  for  mesne  profits.^  Parties  who  have  acquired 
their  rights  before  the  commencement  of  a  suit  are  not 
atlected  by  a  lis  pendens.* 

§  706.  Diligence  in  prosecution  of  suit. — The  suit  in 
order  to  affect  a  grantee  with  notice,  must  be  prosecuted 
without  unnecessary  delay.  There  must  be  reasonable 
diligence  used  in  endeavoring  to  obtain  a  final  judgment.* 

testimony  of  witnesses,  ought,  if  all  persons  were  bound  to  take 
notice  of  what  is  going  on  in  courts  of  justice,  to  be  a  notice  to  all 
the  world  as  much  as  a  bill  for  relief.  But  these  are  decided  to  be  no 
notice  to  any  purpose;  a  proof  that  the  rule  as  to  the  effect  of  a  lis 
pendens  is  one  of  mere  policy,  confined  in  its  operation  strictly  to  the 
purposes  for  which  it  was  adopted  ;  that  is,  to  give  effect  to  the  judgment 
and  decrees  of  courts  of  justice,  and  that  it  is  not  properly  a  notice  to 
any  purpose  whatsoever.  The  English  judges  and  elementary  writers 
have  carelessly  called  it  a  notice,  because,  in  one  single  case,  that  of 
a  suit  prosecuted  to  decree  or  judgment,  it  had  the  same  effect  upon  the 
interests  of  the  purchaser  as  a  notice  had,  though  for  a  different  reason. 
But  the  courts  have  not  in  any  case  given  it  the  real  force  and  effect  of  a 
notice." 

1  Howard  v.  Kennedy,  4  Ala.  592;  39  Am.  Dec.  307;  Wallen  v.  Huff,  3 
Sneed,82;  65Am.  Dec.  49;  Jackson  t;.  Tuttle,  9  Cowen,233;  Hickman 
V.  Dale,  7  Yerg.  149;  Jones  v.  Chiles,  2  Dana,  25;  Smith  v.  Trabue,  1 
McLean,  87. 

''  Howard  v.  Kennedy,  4  Ala.  592 ;  39  Am.  Dec.  307 ;  Fogarty  v.  Sparks, 
22  Cal.  142.     See,  also.  Chiles  v.  Stephens,  1  Marsh.  333. 

»  Jackson  v.  Stone,  13  Johns.  447;  Bradley -y.  McDaniel,  3  Jones,  128. 

*  Houghwout  V.  Murphy,  22  N.  J.  Eq.  545;  Chapman  v.  West,  17 
N.  Y.  125;  Hunt  v.  Haven,  52  N.  H.  162;  Ensworth  v.  Lambert,  4  Johns. 
Ch.  605;  People  v.  Connelly,  8  Abb.  Pr.  128;  Hopkins  v.  McLaren,  4 
Cowen,  677;  Hall  v.  Nelson,  23  Barb.  88;  Curtis  v.  Hitchcock,  10  Paige, 
399;  Parks  f.  Jackson,  11  Wend.  442;  25  Am.  Dec.  656.  But  see  Norton 
V.  Biree,  .35  Conn.  250. 

*  Herrington  v.  McCollum,  73  111.  476;  Gibler  t;.  Trimble,  14  Ohio,  323; 


1065  THE  DOCTRINE  OF  NOTICE.  §  797 

Where  for  a  period  of  nearly  two  years  no  step  was  taken  in 
a  case  or  motion  made  indicating  an  intention  to  prosecute 
the  suit,  and  no  excuse  was  offered,  or  explanation  given 
for  the  delay,  the  court  considered  that  there  had  been 
such  gross  and  culpable  negligence  in  the  prosecution  of 
the  suit  as  to  take  away  from  the  plaintiff  the  privilege  of 
claiming  the  benefit  of  a  notice  of  lis  pendens.^  "To  en- 
title him  to  enforce  it  against  bona  fide  purchasers,  he  has 
been  held  to  reasonable  diligence  in  the  prosecution  of 
hi*  suit,  and  should  be  guilty  of  no  palpable  slips  or  gross 
irregularities  in  the  management  of  the  same,  by  which 
injury  may  accrue  to  the  rights  of  others  who  are  not 
parties."^  And  where  a  suit  has  been  commenced  in  the 
name  of  persons  who  have  no  interest,  for  which  reason 
the  suit  might  properly  have  been  dismissed,  an  after- 
ward the  names  of  those  who  have  an  interest  are  intro- 
duced, there  has  been  such  a  slip,  it  is  held  in  Kentucky, 
that  the  principle  of  lis  pendens  cannot  be  applied  to  in- 
termediate purchasers.^ 

§  797.  Continued. — But  in  Iowa,  where  a  suit  was 
brought  to  enforce  the  specific  performance  of  a  contract 
for  the  conveyance  of  land,  and  a  person  bought  the 
land  during  the  pendency  of  the  suit,  and  subsequently 
the  bill  on  appeal  being  ordered  to  be  dismissed  with 
leave  to  the  plaintiff  to  file  a  bill  de  novo,  the  plaintiff  filed 
a  new  bill,  making  the  purchaser  a  party,  it  was  held  that 
the  purchaser  took  with  notice  of  the  lis  pendens.  The 
court  said  that  if  the  grantee  had  purchased  between  the 

Edmeston  v.  Lyde,  1  Paige,  637;  19  Am.  Dec.  454;  Murray  »'.  Ballou,  1 
Johns.  Ch.  566;  Trimble  /•.  Boothby,  14  Ohio,  109;  45  Am.  Dec.  526; 
Pelree  v.  Bell,  2  Bu-:h,  58;  Watson  v.  Wilson,  2  Dana,  406;  1'6  Am.  Dec. 
4o9;  Erhman  v.  Kendrick,  1  Met.  (Ky.)  146;  Clarkson  v.  Morgan,  6  B. 
Mon.  441,  448;  Price  v.  McDonald,  1  Md.  403;  54  Am.  Dec.  657;  Myrick 
r.  f^elden,  36  Barb.  15,  22;  Preston  ?•.  Tubbin,  1  Vern.  286.  And  see 
Ashley  V.  Cunningham,  16  Ark.  168;  Debell  v.  Foxworthy,  9  B.  Mon. 
228;  Mann  v.  Roberts,  11  Lea  (Tenn.),  57. 

'  Petreev.  Bell,  2  Bush,  58. 

'  Clarkson  v.  Morgan,  6  B.  Mon.  441,  448. 

*  ClarkBon  v.  Morgan,  supra. 


§§  798,  799         THE  doctrine  of  notice. 


1066 


lime  the  iirst  suit  teniiiiuited  and  the  second  commenced, 
it  might  be  doubted  whether  he  would  be  a  purchaser  with 
notice,  but  that  under  the  circumstances,  he  could  occupy 
no  better  position  than  if  the  first  decree  had  been 
affirmed,  instead  of  reversed  on  appeal/  And  in  IHinois, 
in  a  somewhat  recent  case,  the  point  is  directly  decided 
that  where  a  suit  is  dismissed  and  afterward  reinstated, 
the  doctrine  of  lis  pendens  has  no  application  to  a  person 
purchasing  after  the  dismissal,  and  before  the  revival  of 
the  suit.-  It  is  held,  however,  in  one  case,  that  it  is  not 
necessary  that  the  suit  should  be  prosecuted  with  even 
ordinary  diligence  to  enable  a  party  to  maintain  the 
benefit  of  a  lis  pendens;  that  such  benefit  can  be  termi- 
nated only  by  unreasonable  and  unusual  negligence  in 
he  prosecution  of  the  suit.^ 

§  798.  Reasonable  excuse. — Whether  there  has  been 
unreasonable  delay  in  any  particular  case  must  of  neces- 
sity depend  upon  the  circumstances  of  that  case.  As 
will  be  more  particularly  noticed  in  the  following  section 
the  law  of  lis  pendens,  binding  purchasers  who  have  no 
actual  knowledge  of  the  suit,  is  considered  a  rigorous  one, 
and  in  order  that  the  plaintiff  may  retain  the  benefit  he 
has  secured,  he  must  prosecute  his  suit  with  diligence  or 
explain  the  cause  for  the  delay.  But  while  the  delay  may 
of  itself  be  long,  and  apparently  unpardonable,  still,  if  the 
jdaintiff  can  present  a  reasonable  excuse  for  it,  the  court 
must  enforce  the  rule  that  the  notice  of  lis  pendens  has 
continued  during  the  whole  of  the  time.* 

§  799.  Rule  of  lis  pendens  not  favored. —  It  is  said 
that  the  doctrine  of  lis  pendens  "has  ever  been  regarded 
as  a  harsh  and  rigorous  rule  in  its  operation  upon  the 
rights  of  bona  fide  purchasers.     The  rule  was  dictated  by 

1  Ferrier  v.  Buzick,  6  Iowa,  258.  See,  alao.  Bishop  of  Winchester  v. 
Paine.  11  Ves.  Jr.  200. 

*  Herrington  v.  McCollum,  73  111.  477. 

»  Gossom  r.  Donaldson,  18  Men.  B.  230;  68  Am.  Dec.  723. 

*  Wickliffe  v.  Breckenridge,  1  Bush,  443. 


1067  THE    DOCTRINE    OF    NOTICE.  §  800 

necessity  as  indispensable  to  the  rights  of  litigants,  and 
as  the  means  of  terminating  litigation  about  the  matter 
in  contest.  But  being  a  hard  rule  and  operating  with 
great  severity  in  many  instances  upon  the  rights  of  inno- 
cent purchasers,  it  should  never  be  carried  in  favor  of  a 
complainant  asking  its  enforcement  beyond  the  purpose 
and  reason  of  its  creation."^  And  again  it  is  said:  "This 
rule  adopted  by  courts  of  equity  from  necessity,  and  in 
imitation  of  the  common  law,  that  when  the  defendant 
in  a  real  action  aliens  after  suit  brought,  the  judgment  in 
such  real  action  will  overreach  such  alienation,  is  yet 
considered  as  against  a  real  and  fair  purchaser  without 
actual  notice  as  a  hard  rule,  and  courts  gladly  avail  them- 
selves of  any  defect  in  the  pleadings  or  proofs  of  the 
plaintiff  to  prevent  its  operation  upon  such  a  purchaser."^ 

§  800.  Eflfect  of  lis  pendens  on  attorney's  lien  for 
fees. — Where  attorneys  have  a  lien  upon  property  recov- 
ered or  protected  by  their  services,  which  the  court  may 
declare  to  be  such  in  the  cause  in  which  such  services  are 
rendered,  the  client  has  no  power,  during  the  pendency 
of  the  suit,  to  make  such  a  disposition  of  the  subject 
matter  of  the  suit  as  will  deprive  the  attorney  of  his  lien, 
nor  to  transfer  the  property  subsequently  to  any  pur- 
chaser with  notice.^  In  the  case  cited,  Nelson,  J.,  speak- 
ing for  the  court,  said  that  "while  it  is  the  duty  of  the 
courts  to  protect  clients  against  all  unfair  advantages  on 
the  part  of  their  counsel,  it  is  a  duty  of  equal  obligation 
to  shield  the  attorney,  so  far  as  practicable,  against  the 
bad  faith  and  ingratitude  of  clients.  The  lien  of  a  ven- 
dor of  land  is  enforced  in  equity  against  the  vendee, 
although  no  reservation  of  a  lien  is  contained  in  a  deed. 
His  equity  grows  out  of  the  transaction,  and  we  hold  that 
an  attorney  is  entitled  to  an  equitable  lien  on  the  prop- 
erty or  thing  in  litigation  for  his  just  and  reasonable  fees, 

»  Clarkson  v.  Morgan,  6  Mon.  B.  441,  448,  per  Ewing,  C.  J. 
»  Ludlow's  Heirs  V.  Kiilii,  P,  Ohio,   541,    543,   per   Sherman,  J.    See, 
also,  Hayden  v.  Bucklin,  9  Paige,  511. 
'  Hunt  V.  McClanahan,  1  Heisk.  503. 


C    v^Ql  THE    DOCTRINE    OF    NOTICE,  106^ 

and  tliat  the  client  cannot,  while  the  suit  is  pending,  so 
dispose  of  the  snhject  matter  in  suit  as  to  deprive  the 
attorney  of  his  lien,  nor  afterward  to  any  purchaser  with 
notice.  The  pendency  of  the  suit  is  of  itself  notice  to  al 
persons,  and  the  lien  may  be  preserved  and  the  notice 
extended,  by  stating  its  existence  in  the  judgment  or 
decree." 

§  801.     Suit  must  affect  specific  property. — It  is  not 

sufficient  to  create  a  lis  pendens  as  the  term  is  understood 
when  speaking  of  its  effect  as  notice,  that  the  suit  may 
ultimately  affect  all  or  some  particular  portion  of  the  real 
estate  of  the  defendant.  The  property  must  be  specified 
in  the  proceedings  and  as  to  this  property  all  persons  are 
charged  with  notice  of  the  pending  litigation  affecting  it. 
The  doctrine  of  lis  pendens  has  no  application  to  a  suit  for 
a  divorce  and  alimony,  as  such  a  suit  does  not  relate  to 
any  particular  piece  of  property.^  In  one  case  the  court, 
while  deciding  that  the  law  of  lis  pendens  did  not  apply 
in  a  suit  for  divorce,  intimated,  however,  that  if  the 
prayer  of  the  petition  had  been  to  have  alimony  assignee 
'out  of  a  particular  tract  of  land,  the  case  would  have  hac 
some  resemblance  to  those  in  which  the  rule  of  lis  penden& 
had  been  applied.^     So  a  suit  for  a  sum  of  money  which 

'  Feigley  V.  Feigley,  7  Md.  537,  563;  61  Am.  Dec.  375;  Hamlin  v.  Be- 
vans,  7  Ohio,  161;  28  Am.  Dec.  625;  Brightman  v.  Brightman,  1  R.  I 
112.  In  the  case  first  cited,  the  court  said:  "As  well  might  a  pendinj 
action  at  law  to  recover  an  ordinary  debt  be  a  lis  pendens  as  to  the  prop 
erty  of  a  debtor,  as  a  proceeding  like  the  present,  the  purpose  of  each  be- 
ing to  subject  the  property  of  the  debtor  to  the  payment  of  debts.  Lis 
•pendens  is  a  proceeding  relating  to  the  thing  or  property  in  qttestion." 

*  Brightman  v.  Brightman,  1  R.  I,  112.  And  see  Daniel  v.  Hodges, 
87  N.  0.  95.  In  the  former  case,  the  court  said:  "But  the  rule  only 
lates  to  suits  involving  the  title  to  property,  and  is  not  to  be  extendec 
beyond  the  property  involved  in  the  suit :  1  McCord  Ch.  264.  The  sui 
must  relate  to  the  estate,  and  not  to  anything  collateral,  such  as  monej 
secured  on  it:  3  Atk.  392.  The  rule  applies  where  a  third  person  at 
tempts  to  intrude  into  a  controversy  by  acquiring  an  interest  in  the  mat 
ter  in  dispute  pending  suit:  4  Co  wen,  667;  2  Johns.  Ch.  445.  We  d< 
not  apj.rehend  that  the  rule  of  Us  peyidens  is  applicable  to  this  case.  Th 
j.rayer  of  the  complainant's  petition  was  for  divorce  and  for  alimony  ou 
of  her  husband's  estate.    It  did  not  affect  the  title  to  his  real  estate,  o 


1069  THE  DOCTRINE  OF  NOTICE.  §  802 

may  be  satisfied  by  a  sale  of  real  estate,  if  not  satisfied  in 
some  other  mode,  cannot  be  regarded  as  lis  pendens  so  as 
to  affect  the  title  to  the  real  estate  of  the  defendant.^ 

§  802.  When  lis  pendens  commences.  —  The  com- 
mencement of  a  lis  pendens  dates  from  the  service  of  the 
subpoena  or  otlier  process  giving  the  court  jurisdiction.^ 
If  a  defective  subpoena  is  served  after  the  filing  of  a  bill  to 
foreclose  a  mortgage,  and,  by  stipulation,  the  service  of 

necessarily  seek  to  put  any  encumbrance  on  it.  Alimony  is  to  be 
granted  out  of  the  personal  or  real  estate,  and  is  not  necessarily  a  charge 
on  either.  Had  the  prayer  in  this  case  been  for  alimony  to  be  assigned 
her  out  of  this  particular  farm,  the  case  would  have  somewhat  resem- 
bled some  of  the  cases  in  the  books  where  the  rule  has  been  applied. 
But  it  is  not  so;  it  is  general  for  alimony  out  of  his  estate.  If  such  a 
prayer  locks  up  the  real,  it  equally  does  the  personal,  estate  of  a  respond- 
ent to  such  a  petition,  and  each  and  every  part  of  it.  The  instant  such 
a  petition  is  filed,  the  respondent's  business,  however  extensive  it  may 
be,  must  stop.  Purchasers  and  dealers  with  him,  by  the  policy  of  the 
law,  are  bound  by  the  decree  for  alimony  that  may  be  passed,  although 
they  do  not  even  know  that  they  are  dealing  with  a  married  man.  Ali- 
mony will  be  claimed,  and  must  be  allowed  to  attach  to  any  and  every 
part  of  the  personal  property  that  the  husband  had  at  the  filing  of  the 
petition.  We  do  not  think  this  case  falls  within  the  rule  of  lis  pendens, 
nor  within  the  reason  of  that  rule."  And  see,  also,  Gardner  v.  Peck- 
ham,  13  R.  I.  102. 

1  St.  Joseph  Mfg.  Co.  v.  Daggett,  84  111.  556.  See,  also.  White  v.  Perry, 
14  W.  Va.  66 ;  Pay  v.  Roe,  2  Blackf.  258 ;  18  Am.  Dec.  159 :  Low  v.  Pratt, 
53  111.  438;  Lewis  v.  Mew,  1  Strob.  Eq.  180;  Miller  v.  Sherry,  2  Wall. 
237;  Jones  v.  McNarrin,  68  Me.  334;  28  Am.  Rep.  66;  Green  v.  Slayter, 
4  Johns.  Ch.  39;  Worsley  v.  Earl  of  Scarborough,  3  Atk.  392.  And  see 
Lockwood  V.  Bates,  1  Del.  Ch.  435;  12  Am.  Dec.  121;  Center  v.  P.  &  M. 
Bank,  22  Ala.  743. 

'  Williamson  v.  Williams,  11  Lea  (Tenn.),  355;  Haughwout  v.  Mur- 
phy, 22  N.  J.  Eq.  545 ;  Allen  v.  Poole,  54  Miss.  323 ;  Murray  v.  Blatchford, 
1  Wend.  583;  19  Am.  Dec.  537;  Majors  v.  Cowell,  51  Cal.  478;  Leitch  v. 
Wells,  48  N.  Y.  585 ;  Allen  v.  Mandaville,  26  Miss.  397 ;  Edwards  v.  Bank- 
smith,  35  Ga.  213;  Hayden  v.  Bucklin,9  Paige,512;  Butler  t).  Tomlinson, 
38  Barb.  641;  Jackson  v.  Dickenson,  15  Johns.  309;  8  Am.  Dec.  236; 
Center  v.  The  Bank,  22  Ala.  743;  Farmers'  Nat.  Bank  v.  Fletcher,  44 
Iowa,  252;  Herrington  v.  Ilerrington,  27  Mo.  560;  Powell  v.  Wright,  7 
Beav.  444;  Scott  j;.  McMillan,  1  Litt.  302;  13  Am.  Dec.  239;  Campbell's 
case,  2  Bland,  209;  20  Am.  Dec.  360;  Murray  v.  Ballon,  1  Johns.  Ch. 
566,  576.  And  see  Miller  v.  Sherry,  2  Wall.  237;  Wickliffe  v.  Brecken- 
ridge,  1  Bush,  443;  Newman  v.  Chapman,  2  Rand.  93;  14  Am.  Dec.  766; 
Goodwin  v.  McGehee,  15  Ala,  232 ;  Waring  v.  Waring,  7  Abb.  Pr.  472. 


§   303  THE    DOCTRINE    OF    NOTICE.  1070 

the  subpirna  and  all  subsequent  proceedings  are  set  aside, 
the  complainant  being  j)erniitted  to  amend  the  subpoena 
so  as  to  date  it  of  the  day  the  stipulation  was  made,  the 
commencement  of  tlie  suit  is  deemed  to  be  at  the  time  of 
the  service  of  such  amended  subpoena.^  Where  service 
is  made  by  publication,  the  service  is  complete  after  regu- 
lar  publication.^  "It  is  necessary  to  adopt  some  analo- 
gous rule  in  those  cases,  v/here  the  law  provides  a  differ- 
ent manner  of  notice.  Whenever  the  act  is  done,  by 
which  the  defendant  is  submitted  to  the  jurisdiction  of 
the  court,  it  is  a  service  of  process,  and  the  suit  is  com- 
menced/'^ A  lis  pendens  does  not  exist  where  service  of 
a  subpoena  is  accepted  as  of  a  prior  date  so  as  to  bind  a 
person  purchasing  before  the  time  of  such  acceptance.* 
The  lis  pendens  is  notice  of  all  pertinent  facts  stated  in 
the  pleadings.^  But  where  an  amendment  is  made,  the 
notice  dates  from  the  time  of  the  amendment."  A  lis 
'pendens  does  not  exist  as  to  facts  not  within  the  purpose 
of  the  suit.^ 

§  803.  Statutory  lis  pendens. — In  England,  and  in 
most  if  not  all  of  the  several  States,  statutes  have  been 
passed  requiring  notices  to  be  filed  so  as  to  affect  pur- 
chasers with  notice.  These  statutes  differ  in  their  details, 
some  requiring  more  particulars  to  be  stated  than  others, 

^  Allen  V.  Case,  13  Wis.  621. 

»  Chaudron  v.  Magee,  8  Ala.  570;  Ilayden  v.  Bucklin,  9  Paiore,  511. 
'  llennet's  Lessee  v.  Williams,  5  Ohio,  461,  463.     See  Carter  v.  Mills, 
30  Mo.  432;  Clevinger  v.  Hill,  4  Bibb,  498. 

*  Miller  v.  Kershaw,  1  Bail.  Eq.  479;  23  Am.  Dec.  183. 

*  Jones  V.  McNarrin,  68  Me.  334;  28  Am.  Rep.  66;  Center  v.  P.  &  M. 
Bank,  22  Ala.  743;  Lockwood  v.  Bates,  1  Del.  Ch.  435;  12  Am.  Dec.  121. 

«  Jones  V.  Lusk,  2  Met.  (Ky.)  356;  Stones.  Connelly,  1  Met.  (Ky.) 
654;  71  Am.  Dec.  499;  Clarkson  v.  Morgan,  6  Mon.  B.  441.  But  see 
Stoddard  v.  Myers,  8  Ohio,  203 ;  10  Ohio  St.  365. 

'  Bellamy  v.  Sabine,  1  De  Gex  &  J.  566;  Tyler  v.  Thomas,  25  Beav. 
47.  See  Stuyvesant  v.  Hall,  2  Barb.  Ch.  151.  See,  also,  Taylor  v.  Boyd, 
3  Ohio,  338;  17  Am.  Dec.  603;  McCormick  v.  McClure,  6  Blackf.  466;  39 
Am.  Dec.  441 ;  Ludlow  v.  Kidd,  3  Ohio,  541  ;  Clarey  v.  Marshall,  4  Dana, 
95;  Debell  v.  Foxwcjrthy,  9  Mon.  B.  228;  Gore  v.  Stakpoole,  1  Dow,  31; 
Earle  v.  Couch,  3  Met.  (Ky.)  450. 


1071  THE    DOCTRINE    OF    NOTICE.  §  804 

but  the  common  object  of  all  is  to  abate  the  rigor  of  the 
technical  rule  of  lis  pendens  and  provide  a  safe  and  effect- 
ive mode  of  giving  notice/  The  effect  of  a  lis  pendens 
cannot  be  nullified  by  the  fact  that  it  has  been  lost  from 
the  files  or  has  not  been  properly  entered,  through  no 
fault  of  the  party. ^  And  this  is  true,  although  the  party 
whom  it  is  sought  to  bind  may  never  have  actually  seen 
it.^ 

§  804.  Effect  of  the  statutes.  —  Under  these  statutes, 
a  purchaser  is  not  affected  by  a  lis  pendens  unless  notice 
has  been  given  in  the  manner  directed  by  statute.  "The 
general  rule  is,  that  one  not  a  party  to  a  suit  is  not  affected 
by  the  judgment;  the  exception  at  common  law  is,  that  a 
pendente  lite  purchaser,  though  not  a  party  was  so  affected; 
the  qualification  of  the  doctrine  made  by  our  statute  is, 
that  such  purchaser  is  not  affected  unless  notice  of  such 
lis  pendens  he  ^\ed  with  the  recorder The  common- 
law  doctrine  of  lis  pendens  rests  upon  the  fiction  of  notice 
to  all  persons  of  the  pendency  of  suits,  and  to  remedy 
the  evils  which  might  grow  out  of  the  transfer  of  appar- 
ent legal  titles  or  rights  of  action  to  persons  ignorant  of 
litigation  respecting  them,  this  provision  was  inserted  in 

*  See  in  England,  2  Vict.  C.  1157.  It  is  not  deemed  necessary  to  ap- 
pend an  abstract  or  refer  to  the  statutes  of  the  different  States,  as  the 
subject  is  connected  with  practice  with  which  each  attorney  is  familiar. 
But  reference  may  be  made  to  the  following  cases  relating  to  the  statu- 
tory Us  pendens:  Ab;.die  v.  Lobero,  36  Cal.  390;  Richardson  v.  White,  18 
Cal.  102 ;  Ault  c  Gassaway,  18  (Jal.  205  ;  Farmers'  Nat.  Bank  v.  Fletcher, 
44  Iowa,  252;  Drake  v.  Crowell,  40  N.  J.  L.  58;  Mills  v.  Bliss,  55  N.  Y. 
139;  Todd  v.  Outlaw,  79  N.  C.  235;  Sheridan  v.  Andrews,  49  N.  Y.  478; 
Mitchell  V.  Smith,  53  N.  Y.  413;  Brown  v.  Goodwin,  75  N.  Y.  409;  Ay- 
rault  V.  Murphy,  54  N.  Y.  203;  Page  v.  Waring,  76  N.  Y.  463;  Fuller  v. 
Scribner,  76  N.  Y.  190;  Majors  v.  Cowell,  51  Cal.  478;  Dresser  v.  Wood, 
15  Kan.  344;  Leitch  v.  Wells,  48  Barb.  637;  Wliite  v.  Perry,  14  W.  Va. 
6tj;  Jaffray  v.  Brown,  17  Hun,  575;  Mayberry  v.  Morris,  62  Ala.  113; 
Tredway  v.  McDou  dd,  51  Iowa,  6ti3.  The  statutes  of  a  State  relating  to 
lis  pe>idens,  it  is  held,  does  not  apply  to  suitors  exceptin  the  State  couits : 
Majors  v.  Cowell,  51  Cal.  478. 

*  Heim  v.  Ellis,  49  Mich.  241. 

*  Heim  v.  Ellis,  supra. 


§  S05  TITK    DOCTRINE    OF    KOTICE.  1072 

our  statute We  consider  our  statute,  not  as  giving 

new  rights  to  the  plaintiff,  but  as  a  limitation  upon  the 
ri^'hls  which  he  had  before.  If  no  lis  pendens  be  filed, 
the  party  acquiring  an  interest  or  claim  pendente  lite 
stands  wholly  unaffected  by  the  suit.  If  he  has  any 
rights  which  but  for  the  suit,  he  could  set  up,  he  may 
still  maintain  those  rights.  But  he  would  not  be  fore- 
closed by  a  judgment  against  the  party  to  the  suit  from 
whom  he  obtained  his  assignment.  The  object  of  the 
statute  evidently  was  to  add  to  the  common-law  rule  a 
single  term,  to  wit,  to  require  for  constructive  notice  not 
only  a  suit,  but  filing  a  notice  of  it,  so  that  this  rule  is  as 
if  it  read:  'The  commencement  of  a  suit  and  the  filing 
of  a  notice  of  it  are  constructive  notice  to  all  the  world 
of  the  action,  and  purchasers  or  assignees,  afterward  be- 
coming  such,  are  mere  volunteers  and  bound  by  the  judg- 
ment." *  It  is  held  in  one  case  that  a  notice  of  lis  pendens 
is  not  affected  by  the  fact  that  it  was  filed  several  days 
before  the  commencement  of  the  suit.^  But  this  is  de- 
nied; and  it  is  also  held  that  where  no  bill  has  been  filed, 
a  lis  pendens  filed  is  a  nullity  as  constructive  notice/  or  is 
inoperative/ 

§  805.  Actual  notice.  —  As  the  object  of  these  statutes 
is  to  provide  a  mode  for  giving  the  constructive  notice 
which  formerly  was  given  by  the  commencement  of  the 
suit  itself,  and  to  prevent  a  party  from  claiming  that  a 
subsequent  purchaser  is  affected  with  constructive  notice 
unless  the  requirements  of  the  statute  have  been  com- 
plied with,  it  is  evident  that  a  subsequent  purchaser  who 
has  actual  notice  cannot  object  if  the  statutory  notice  has 
not  been  filed,  the  filing  of  which  was  intended  only  to 
give  him    the    notice    which    he    already    had    or  after- 

^  Richardson  v.  White,  18  Cal.  102,  106,  per  Baldwin,  J.  See  Head 
V.  Fordyce,  17  Cal.  149. 

'  Hou^'hton  V.  Mariner,  7  Wis.  244. 

*  Walker  v.  Hill's  Executors,  22  N.  J.  Eq.  514.  See  Weeks  v.  Tomes, 
16  Hun,  .349. 

*  bherman  v.  Bemis,  58  Wis.  343. 


1073  THE  DOCTRINE  OF  NOTICE,  §  805 

ward  acquired.  In  other  words,  a  purchaser  having 
actual  notice  of  the  pendency  of  the  suit  is  not  protected 
by  the  statute/ 

1  Baker  v.  Pierson,  5  Mich.  456;  Sampson  v.  Ohleyer,  22  Oal.  200- 
Abadie  v.  Lobero,  36  Cal.  390.  ' 

Deeds,  Vol.  II.  — 68 


CHAPTER  XXIV. 
CONSIDERATION. 

§  S06.    Kinds  of  consideration. 

§  807.    Support. 

§  808.    Marriage. 

§  808a.  Estoppel  from  representations  in  marriage  negotiations. 

§  808  b.  Parol  evidence  showing  marriage  to  be  consideration. 

§  808c.  Grantor's  intention  to  defraud  creditors  where  deed  is  made  in 
consideration  of  marriage. 

§  800.    Other  valuable   considerations. 

§  810.    Deeds  of  bargain  and  sale  and  covenants  to  stand  seised. 

§  811.    Consideration  of  paying  grantor's  debts. 

§  812.    Trust  to  distribute  estate  according  to  will. 

§  Sl3.    Valuable  consideration  as  protection  to  bona  fide  purchasers. 

§  814.    Adequacy  of  consideration. 

§  815.    Antecedent  debts  as  considearation. 

§  816.    The  other  view. 

§  Sl7.    Presumption  that  deed  states  true  consideration. 

§  818.  Presumption  as  against  strangers— iConflict  in  the  deoisions— 
Comments. 

§  819.    Decisions  that  the  rule  applies  to  strangers. 

§  820.    Decisions  that  the  rule  does  not  apply  to  strangers. 

§  821.     Comments. 

§  822.    Proof  of  real  consideration. 

§  823.    Action  for  purchase  price. 

§  824.    Quantity  of  land  conveyed. 

§  825.    Parol  promise  of  grantee  to  convey  other  land. 

§  826.    Verbal  promise. 

§  g"27.    Vesting  of  title. 

§  828.    Retention  of  purchase  money  by  grantee. 

§  829.    Whether  a  gift  or  an  advancement. 

§  830.  Reason  for  the  rule  admitting  parol  evidence  as  to  considera- 
tion. 

§  831.    Parol  agreement  to  execute  devise. 

?  832.     Community  property. 

§  833.    In  North  Carolina,  acknowledgment  is  release. 

§  834.    Showing  absence  of  consideration  to  defeat  deed. 

§  800.     Kinds  of  consideration. — By  the   elementary 
writers,  considerations  are  divided  into  two  kinds,  good 

(1074  J 


1075  CONSIDERATION^.  §  807 

and  valuable.  "  Good  considerations  are  those  of  blood, 
natural  love,  and  afifection,  and  the  like."  "Valuable 
considerations  are  those  which  confer  some  benefit  upon 
the  party  by  whom  the  promise  is  made,  or  upon  a  third 
party  at  his  instance  or  request;  or  some  detriment  sus- 
tained at  the  instance  of  the  party  promising,  by  the 
party  in  whose  favor  the  promise  is  made."^  The  natural 
affection  arising  from  the  relationship  existing  between  a 
grandfather  and  a  grandchild  is  held  to  be  a  good  consid- 
eration for  a  deed.^ 

§  807.  Support. — It  was  hold  in  one  case  that  where 
the  only  consideration  expressed  in  a  deed  of  bargain  and 
sale  was,  that  the  grantee  should  support  the  grantor  for 
his  natural  life,  the  deed  was  without  consideration  and 
void,  because,  as  the  deed  was  not  executed  by  the  grantee, 
there  was  no  agreement  on  his  part,  in  the  opinion  of  the 
court,  to  sup{iort  the  grantor,  and  the  deed  was  thus 
merely  conditional,  giving  an  option  to  the  grantee  to 
support  the  grantor,  or  to  suffer  it  to  become  void  by 
withdrawing  his  support.^  But  support  of  the  grantor  by 
the  grantee,  it  may  be  said,  is  now  regarded  everywhere 
as  a  sufficient  consideration  for  a  deed.  The  grantee, 
by  accepting  the  deed  and  entering  into  possession  under 
it,  becomes    bound  by  the  agreement  providing  for  the 

^  Bouv.  Law  Diet.,  tit.  Consideration. 

*  Hanson  v.  Buckner's  Executor,  4  Dana,  251;  29  Am.  Dec.  401; 
Stovall  V.  Barnett,  4  Litt.  207.  But  it  is  held  otherwise  in  Borum  v. 
King's  Administrator,  37  Ala.  606.  See  for  other  examples  of  good  consid- 
erations, Stafford  V.  Stafford, 41  Tex.  Ill;  WalUs  r.  Waliis,  4  Mass.  135 ;  3 
Am.  Dec.  210;  Bell  v.  Scamraon,  15  N.  H.  381;  41  Am.  Dec.  706.  But 
a  covenant  to  stand  seised  to  uses  on  the  part  of  a  father,  cannot  be  sup- 
ported by  the  consideration  of  love  and  affection  to  an  illegitimate  child: 
Blount  V.  Blount,  2  Law  Repos.  (N.  C.)  587;  Repos.  &  Taylor's  Term, 
Law  &  Eq.  (N.  C),  389.  And  see  Ivey  v.  Gran  berry,  66  N.  C.  224.  A 
deed  executed  by  a  father  to  his  daughter,  in  consideration  of  one  dollar, 
actually  paid,  and  natural  love  and  affection,  is  not  a  voluntary  convey- 
ance, so  as  to  prevent  the  grantee  from  enforcing  her  rights  under  it  in 
equity  against  the  grantor  and  his  heirs,  when  she  has  taken  possession 
and  made  large  and  expensive  improvemeuts:  Appeal  of  Ferguson,  117 
Ba.  St.  426. 

*  Jackson  v.  Florence,  16  Johns.  47. 


^  SOS  CONSIDERATION.  1076 

support  of  the  grcintor,  and  the  provision  for  support  thus 
becomes  equivalent  to  a  life  annuity.'  A  deed  will  not 
be  vacated  because  the  consideration  is  unlawful.  The 
court  will  leave  the  parties  in  the  position  in  which  it 
finds  them.^ 

§  808.  Marriage. — Marriage  is,  of  course,  a  valuable 
consideration  for  a  deed.  Where  the  grantee,  under  a 
voluntary  conveyance,  gains  credit  by  the  conveyance, 
and  a  third  person,  on  account  of  the  provisions  made 
for  her  in  the  deed,  is  induced  to  marry  her,  the  deed  on 
the  marriage  loses  its  voluntary  character,  and  is  effective 
as  against  a  subsequent  bona  fide  purchaser  for  a  valuable 
consideration,*  And  although  the  marriage  may  be  pre- 
vented by  death,  a  legal  contract  and  promise  of  mar- 

1  Hutchinson  v.  Hutchinson,  46  Me.  154;  Shontz  v.  Brown,  27  Pa.  St. 
123;  Spalding  «;.  Hallenbeck,  30  Barb.  292;  Exum  v.  Canty,  34  Miss. 
538.  In  Spalding  v.  Hallenbeck,  supra,  the  court  refer  to  Jackson  v. 
Florence,  16  Johns.  47,  and  say  that  the  cases  are  distinguishable,  be- 
cause, in  the  latter  case,  the  provision  for  support  was  expressed  in  such 
language  that  it  placed  no  obligation  upon  the  grantee,  while  in  the  case 
of  Spalding  v.  Hallenbeck  there  was  a  present  agreement  for  support, 
which  became  binding  upon  the  grantee  by  his  acceptance  of  the  deed. 
And  see  Henderson  v.  Hunton,  26  Gratt.  926;  Keener  v.  Keener,  34  W. 
Va.  121.  A  promise  to  pay  taxes  and  contribute  to  the  grantor's  sup- 
port is  a  sufficient  consideration  for  a  deed  :  Taylor  v.  Crockett,  123  Mo. 
300.    See,  also,  Brown  v.  Brown,  44  S.  C.  378. 

^  Moore  v.  Adams,  8  Ohio,  372;  32  Am.  Dec.  723.  It  was  held  in  a 
recent  case  in  California,  that  where  the  consideration  for  a  deed  made 
by  an  aged  woman  of  feeble  health  was  her  support  and  maintenance 
for  the  remainder  of  her  life  by  the  grantee,  the  consideration  could  not 
be  specifically  enforced,  and  hence,  being  insufficient  in  law,  the  deed 
will  be  canceled  by  a  court  of  equity,  if  requested  by  the  grantor:  Grim- 
mer V.  Carlton,  93  Cal.  189 ;  27  Am.  St.  Rep.  171.  This  case  is  opposed 
by  the  current  of  authority,  and  cannot  be  regarded,  in  our  opinion,  as 
as  a  precedent  to  be  followed.  The  court  does  not  discuss  the  question, 
and  seems  not  to  be  aware  of  the  authorities  holding  that  a  considera- 
tion to  support  and  maintain  the  grantor  is  a  sufficient  consideration. 
The  suit  was  commenced  for  the  purpose  of  setting  aside  the  deed,  and 
the  question  of  whether  the  agreement  could  be  specifically  enforced  or 
not  became  immaterial.  If  the  grantee  refused  to  perform  the  agree- 
ment, the  grantor  was  not  without  remedy.     See  §  974,  post. 

*  Verplank  v.  Sterry,  12  Johns.  5:!6;  7  Am.  Dec.  348.  If  the  grantee 
18  innocent,  the  fact  that  the  grantor  may  have  intended  a  fraud  upon 


1077  CONSIDERATION.  g  808 

riage  made  in  good  faith  by  a  woman  to  one  who  has 
executed  a  deed  of  land  to  her  for  the  purpose  of  inducing 
her  to  marry  him,  is  a  vakiable  consideration  for  the 
deed,  and  she  can  hold  the  land  embraced  in  the  deed 
against  his  creditors/  In  this  interesting  case,  Merrick, 
J.,  after  stating  that  if  the  marriage  had  taken  place  she 
would  have  been  deemed  to  have  been  a  purchaser  for  a 
valuable  consideration,  and  would  have  taken  a  clear  and 
indefeasible  title,  free  and  purged  of  any  fraud  against 
his  creditors,  further  remarked:  "And  in  reference  to 
the  question  of  the  suflieiency  and  value  of  the  consider- 
ation, and  consequently  of  the  validity  of  the  title  ac- 
quired by  the  conveyance,  there  does  not  appear  to  be 
any  real  and  substantial  distinction  between  a  marriage 
formally  solemnized,  and  a  binding  and  obligatory  agree- 
ment, which  has  been  fairly  and  truly  and  above  all  sus- 
picion of  collusion  made  to  form  such  connection  and 
enter  into  that  relation.  All  the  consequences  of  a  legal 
obligation  accompany  such  an  agreement.  The  law  en- 
forces its  performance  by  affording  an  effectual  remedy 
against  the  party  who  shall,  without  legal  excuse,  fail  to 
fulfill  it.  But  a  contract  of  this  kind  is  not  to  be  regarded 
as  a  valuable  consideration,  merely  because  damages  com- 
mensurate with  the  injury  may  be  recovered  of  the  party 
who  inexcusably  refuses  to  fulfill  it.  It  is  peculiar  in  its 
character,  and  has  other  effects  and  consequences  attend- 
ing it.  It  essentially  changes  the  rights,  duties,  and  priv- 
ileges of  the  parties.  They  cannot,  while  it  exists,  without 
u  violation  of  good  faith,  as  well  as  of  the  material  legal 
obligations  to  which  it  subjects  them,  negotiate  a  contract 
fur  such  alliance  with  any  other  person.  A  woman  who 
has  voluntarily  made  such  an  agreement  cannot,  without 
indelicacy,  and  so  not  without  exposing  herself  to  unfav- 
orable observation,  and  to  some  loss  of  public  favor  and 

his  creditors  will  not  avoid  the  deed:  Prewit  v.  Wilson,  103  U.  S.  22; 
Gibson  i-.  Bennett,  79  Me.  302;  Tolman  v.  Ward,  8G  Me.  303;  41  Am.  St. 
Rep.  556. 

1  Smith  V.  Allen,  5  Allen,  454;  81  Am.  Dec.  758. 


§  SOS  a  CONSIDERATION.  1078 

respect,  seek  elsewhere,  except  for  good  and  substantial 
reasons  for  withdrawing  from  an  engagement  by  which 
she  has  bound  herself,  for  preferment  in  marriage;  and 
til  us  her  promise  and  agreement  to  marry  a  particular 
person  essentially  changes  her  condition  in  life.  They 
nniterially  affect  not  only  her  opportunities,  but  her  right 
to  attemi)t  in  that  way  to  improve  it.  A  legal  contract 
and  promise  made  in  good  faith  to  marry  another  must, 
therefore,  like  an  actual  marriage,  be  deemed  to  be  a  val- 
uable consideration  for  the  conveyance  of  an  estate,  and 
will  justly  entitle  the  grantee  to  hold  it  against  subsequent 
purchasers,  or  the  creditors  of  the  grantor."^ 

§  808  a.  Estoppel  from  representations  in  marriagre 
negotiations. — A  party  who  makes  representations  as  to 
title  to  effect  a  marriage  may  be  held  estopped  by  these 
representations.  A  curious  case  in  support  of  this  prin- 
ciple  occurred  in  New  York.     A  father  died,  leaving  by 

'  Smith  V.  Allen,  supra.  In  a  late  'case  in  California,  Connor  v. 
Stanley,  65  Cal.  183,  a  man,  William  Jarvis,  and  a  woman,  Mrs.  J.  L. 
Connor,  had  executed  a  contract,  each  promising  to  marry  the  other, 
and  the  contract  further  provided  that  "  in  consideration  thereof,  and  of 
the  mutual  affection  existing  between  them,  the  party  of  the  first  p;irt 
grants  and  gives  to  the  said  party  of  the  second  part  ten  thousand 
($10,000)  dollars'  worth  of  the  bonds  of  the  Natoma  Water  and  Mining 
Company,  a  corporation  duly  organized  under  the  laws  of  the  State  of 
California,  being  twenty  bonds  of  five  hundred  ($500)  dollars  each,  made 
payable  to  bearer,  now  in  the  possession  of  the  party  of  the  first  part,  all 
of  which  he  promises  to  deliver  to  her,  the  party  of  the  second  part,  on 
or  before  the  day  of  their  said  marriage,  to  be  and  become  her  own 
absolute  property  in  her  own  name  as  her  separate  estate."  Mrs.  Connor 
was  always  ready  to  fulfill  her  part  of  the  agreement,  but  Jarvis  refused 
to  marry,  and  continued  his  refusal  down  to  the  time  of  his  death.  After 
Jarvis'  death,  Mrs.  Connor  presented  a  verified  claim  to  the  adminis- 
trator of  his  estate,  and  this  being  rejected,  brought  suit  for  the  value  of 
the  bonds.  The  court  below  took  the  view  that  the  contract  of  Jarvis 
was  a  mere  promise  to  deliver  the  bonds  upon  the  marriage  of  the  parties 
within  a  reasonable  time.  But  the  supreme  court  held  this  to  be  error. 
The  court  held  that  the  agreement  was  an  antenuptial  settlement,  the 
consequences  of  which  Jarvis  could  not  avoid  by  refusing  to  consummate 
the  marriage.  Upon  his  refusal,  after  a  reasonable  time,  to  marry  her, 
Bhe  was  entitled  to  the  bonds.  It  became  his  duty  to  seek  her  in  mar- 
riage, not  hers  to  seek  him.  And  see,  also,  Whelan  v.  Whelan,  3  Cowen, 
537 ;  Ellinger  v.  Crowi,  17  Md.  361. 


1079  CONSIDEEATION.  §  808  a 

will  a  farm  to  two  sons,  James  and  Frederick,  and  subject 
to  the  limitation  in  the  case  of  Frederick,  that  if  he 
should  die  without  issue,  the  portion  of  the  estate  devised 
to  him  should  vest  in  James  and  his  heirs.  Frederick 
conveyed  his  interest  in  the  land  to  one  Hoard,  and 
the  latter,  subsequently,  sought  one  Catharine  Hogel  for 
the  purpose  of  bringing  about  a  marriage  between  her 
and  Frederick.  For  the  purpose  of  persuading  lier  to 
marry  Frederick,  Hoard  falsely  and  fraudulently  repre- 
sented to  her  that  Frederick  had  a  piece  of  fine  property, 
and  that  if  she  married  and  had  an  heir  the  land  would 
go  to  the  heir.  Induced  by  these  representations  Catha- 
rine did  marry  Frederick,  and  the  result  of  the  marriage 
was  a  daughter.  Shortly  after  the  birth  of  this  daughter, 
the  farm  was  partitioned  between  James  and  Hoard,  the 
grantee  of  Frederick.  The  object  of  Hoard  in  bringing 
about  the  marriage  was  to  fulfill  the  condition  in  the  will 
that  if  Frederick  had  issue,  he  should  obtain  the  fee; 
otherwise  he  would  possess  only  a  life  estate,  and  the 
birth  of  a  child,  vesting  the  fee  in  Frederick,  would  make 
Hoard's  title  perfect.  The  daughter  commenced  an  action 
praying  that  she  be  declared  the  owner  of  the  farm  set  off 
in  partition  to  Hoard.  The  latter,  while  admitting  that 
he  procured  the  fee  of  the  farm  through  the  marriage, 
claimed  that  the  daughter  had  no  right  of  action  against 
him  because  of  a  lack  of  privity,  and  that  she  was  not 
induced  to  any  action  by  reason  of  his  fraud  and  sus- 
tained no  legal  damage  from  it.  The  court  held,  however, 
that  Hoard  held  the  land  in  trust  for  her.  Mr.  Justice 
Peckham  who  delivered  the  opinion  of  the  court  ob- 
served: "It  is  true,  her  own  action  was  in  nowise  in- 
fluenced by  these  representations,  for  she  was  not  then 
born.  But  where,  in  the  peculiar  and  anomalous  rules, 
obtaining  in  that  branch  of  the  law,  regarding  marriage, 
marriage  settlements,  and  frauds  in  relation  thereto,  a 
marriage  is  induced  under  circumstances  such  as  exist  in 
this  case,  wo  think  there  is  no  trouble  in  holding  the  de- 
fendant bound  by  his  representations,  and  that  in  the 


§§SOSb,  SOSC  CONSIDERATION.  1080 

character  of  a  trustee  ex  maleficio,  he  shall  be  held  to 
luiiko  good  the  thing  to  the  person  who  would  have  the 
property  if  the  fact  were  as  he  represented  it,  assuming 
such  person  to  be  the  fruit  of  the  marriage  brought  about 
by  those  very  representations/ 

§  808  b.  Parol  evidence  showing-  marriage  to  he 
consideration. — Although  the  deed  may  recite  that  it  is 
based  upon  a  pecuniary  consideration,  it  may  be  shown 
by  parol  evidence  that  marriage  was  the  true  considera- 
tion." Where  it  is  recited  in  a  deed  that  the  considera- 
tion is  the  promise  of  the  grantee  to  marry  the  grantor, 
and  the  deed  is  drafted  by  the  grantee  and  transmitted  to 
the  grantor  for  execution,  a  written  memorandum  of  the 
contract  of  marriage  signed  by  the  grantee  is  not  neces- 
sary.* 

§  808  c.  Grantor's  intention  to  defraud  creditors 
■where    deed  is    made  in    consideration  of    marriage. — 

If  the  grantee  is  unaware  at  the  time  that  the  grantor  in- 
tends to  defraud  his  creditors,  her  knowledge  of  this  fact 
before  she  complies  with  her  contract  of  marriage  will 
not  be  sufficient  to  avoid  the  deed.  The  consideration 
for  the  deed  is  not  the  actual  consummation  of  the  mar- 
riage, but  the  agreement  to  marry.*  If  the  grantee  is 
innocent,  the  deed  is  valid,  and  it  is  immaterial  whether 
or  not  the  grantor  intended  a  fraud  upon  his  creditors. 
The  fact  that  he  did  intend  such  a  fraud  will  not  avoid 
the  deed.'^  Marriage  is  regarded  in  law  as  the  highest 
and  most  valuable  of  considerations,  and  the  grantee, 
when  free  from  fraud,  in  as  secure  a  position  as  though 
she  had  paid  in  money  the  full  value  of  the  property. 
Hence,  where  a  father  conveys  land  to  his  daughter  upon 
the  express  consideration  of  her  marriage,  which  was  an 

'  riper  V.  Hoard,  107  N.  Y.  73;  1  Am.  St.  Eep.  789. 
'  Tolman  v.  Ward,  86  Me.  303;  41  Am.  St.  Rep.  556. 

*  Prignon  v.  Daussat,  4  Wash.  199;  31  Am.  St.  Rep.  914. 

*  Prignon  v.  Daussat,  4  Wash.  199;  31  Am.  St.  Rep.  914. 

*  Prewit  V.  Wilson,  103  U.  S.  22;  Gibson  v.  Bennett,  79  Me.  302;  Tol- 
man r.  Ward,  86  Me.  303;  41  Am.  St.  Rep.  556. 


1081  CONSIDERATION.  §  809 

inducement  for  the  conveyance,  and  she  accepts  the  deed 
without  knowing  or  suspecting  any  fraud,  and  the  deed  is 
made  by  the  grantor  without  any  intent  to  defraud  his 
creditors,  believing  he  is  fully  able  to  pay  them,  the  deed 
is  valid  against  the  grantor's  creditors,  although,  at  the 
time  when  he  executed  the  deed,  he  was,  in  fact,  insol- 
vent.^ 

§  800.  Other  valuable  considerations. — Valuable  con- 
siderations are  of  numerous  kinds,  though  most  fre- 
quently they  are  either  money  or  marriage.  It  is  not 
intended  to  refer  to  every  consideration  that  the  courts 
have  declared  to  be  valuable,  but  it  may  be  worth  while 
to  call  attention  to  a  few  as  illustrations.  A  sufficient  con- 
sideration to  support  a  deed  may  consist  of  an  agreement 
to  do  a  thing,  even  though,  as  a  matter  of  fact,  the  agree- 
ment is  never  performed.  If  a  purchaser  from  the  grantee 
under  such  a  deed  believes  that  the  agreement  will  not 
support  a  deed  and  that  it  will  not  be  performed,  this  does 
not  make  his  purchase  fraudulent  or  invalidate  his  title." 
If  a  person  having  a  wife  living  seduces  an  innocent 
woman  by  a  pretended  marriage,  the  injured  party  is  en- 
titled to  compensation  in  money,  and  such  right  to  com- 
pe^.sation  is  a  valuable  consideration  for  a  deed.^     Where 

'  Cohen  v.  Knox,  90  Cal.  266.  Generally,  to  avoid  a  deed  on  the 
ground  of  fraud,  it  must  be  shown  that  the  grantee  was  aware  of  the 
fraud:  Cooke  v.  Cooke,  43  Md.  522;  Mehlhop  v.  Pettibone,  54  Wis.  652; 
Hopkins  V.  Langton,  30  Wis.  379;  Curtis  v.  Valliton,  3  Mont.  187; 
I'reston  v.  Turner,  36  Iowa,  671 ;  Clements  v.  Moore,  6  Wall.  312;  Rea  v. 
Missouri,  17  Wall.  513;  Miller  v.  Bryan,  3  Iowa,  58;  Hall  v.  Arnold,  15 
Barb.  600;  Steele  v.  Ward,  25  iowa,  535;  Partelo  v.  Harris,  26  Conn. 
480;  Bancroft  v.  Blizzard,  13  Ohio,  30;  Chase  v.  Walters,  28  Iowa,  460; 
Violett  V.  Violett,  2  Dana,  323;  Howe  Machine  Co.  v.  Claybourn,  6  Fed. 
Hep.  441 ;  Kittredge  v.  Sumner,  11  Pick.  50;  Fitield  v.  Gaston,  12  Iowa, 
218;  Byrne  v.  Becker,  42  Mo.  464;  McCormick  v.  Hyatt,  33  Ind.  54(3; 
Kellogg  V.  Aherin,  48  Iowa,  299;  Leach  v.  Francis,  41  Vt.  670;  Drum- 
mond  V.  Couse,  39  Iowa,  442;  Ewing  v.  Runkle,  20  111.  448;  Foster  v. 
Hall,  12  Pick.  89;  22  Am.  Dec.  400:  Jeager  v.  Kelley,  52  N.  Y.  274; 
Kuhl  V.  Phillips,  48  N.  Y.  12');  8  Am.  Rep.  522. 

»  Gray  v.  Lake,  48  Iowa,  505 ;  Lake  v.  Gray,  35  Iowa,  459. 

»  Doe  V.  Horn,  1  Ind.  303 ;  50  Am.  Dec.  470.  And  in  such  case  the  title 
of  the  grantee  will  be  valid,  although  the  grantor  may  thereby  intend  to 


§  310  CONSIDERATION.  1082 

a  doe<\  made  on  the  consideration  of  future  illicit  inter- 
course between  the  grantor  and  grantee  is  fully  executed 
and  delivered,  the  title  is  vested  in  the  grantee/  A  cove, 
naut  to  render  personal  services  to  the  grantor  is  a 
valuable  consideration,  and  is  sufficient  to  support  a  bar- 
gain and  sale  deed.^  The  benefit  to  other  lands  of  the 
grantor  to  result  from  the  use  to  be  made  of  tliose  con- 
veyed to  the  grantee,  is  a  valuable  consideration.^  An 
assignment  of  a  part  interest  in  a  bond  for  title  is  a  suffi- 
cient  consideration."  A  deed  was  held  to  be  a  good  bar- 
gain and  sale  deed  where  no  amount  was  mentioned,  but 
it  was  recited  that  the  deed  was  made  for  "a  certain  sum 
in  hand  paid"  ;^  so  where  the  deed  recites  that  it  is  made 
"  for  value  received."  ^ 

§  810.  Deeds  of  bargrain  and  sale  and  covenants  to 
stand  seised. — To  give  effect  to  a  deed  under  the  statute  of 
uses  as  a  deed  of  bargain  and  sale  or  a  covenant  to  stand 
seised  to  uses,  it  is  essential  that  there  should  be  a  consider- 
ation. A  valuable  consideration  is  necessary  for  the  oper- 
ation of  a  deed  of  bargain  and  sale.^   And  however  small  the 

defraud  his  creditors,  if  the  grantee  has  no  knowledge  of  Buch  intention: 
Doe  V.  Horn,  supra. 

>  Hill  V.  Freeman,  73  Ala.  200;  49  Am.  Rep.  48. 

'  Young  V.  Ringo,  1  Mon.  30.  See,  also,  Busey  p.  Reese,  38  Md.  266; 
Mc^Mahan  v.  Morrison,  16  Ind.  172;  79  Am.  Dec.  418;  Gale  v.  Coburn,  18 
Pick.  397;  I\IcWh)rter  v.  Wright,  5  Ga.  555;  Cheney  v.  Watkins,  1  Har. 
&  J.  527;  2  Am.  Dec.  530. 

'  Jackson  v.  Pike,  9  Cowen,  69.  The  reservation  of  rent  in  a  lease  is 
a  sufficient  consideration  for  a  stipulation  that  the  lessor  will  convey  at 
a  fixed  price  upon  the  expiration  of  the  term :  Gaatin  v.  Union  School 
District  of  Bay  City,  94  Mich.  502;  34  Am.  St.  Rep.  361.  See.  also,  Kerr 
V.  Day,  14  Pa.  St.  112;  53  Am.  Dec.  526;  Harding  v.  Gibbs,  125  111.  85;  8 
Am.  St.  Rep.  345. 

*  Cannon  v.  Young,  89  N.  C.  264. 

'  Jackson  v.  Schoonmaker,  2  Johns.  230. 

•  Jackson  v.  Alexander,  3  Johns.  484;  3  Am.  Dec.  517.  The  erection 
and  maintenance  of  a  railway  station  is  a  valuable  consideration  for  a 
deed:  Louisville,  New  Orleans  etc.  Ry.  Co.  v.  Blythe,  69  Miss.  939;  30 
Am.  St.  Rep.  .599. 

T  Boardman  v.  Dean,  34  Pa.  St.  252 ;  Jackson  v.  Sebring,  16  Johns. 
515 ;  8  Am.  Dec.  3o7 ;  Jackson  v.  Florence,  16  Johns.  46 ;  Gault  v.  Hall,  26 


1083  CONSIDERATION.  §   gJQ 

pecuniary  consideration  may  be,  it  is  sufficient  to  support 
a  deed  of  bargain  and  sale/  A  covenant  to  stand  seised 
is  supported  by  a  good  consideration.^  It  is  not  essential, 
however,  that  such  consideration  should  be  expressed  in 
the  deed.  If  it  actually  exists,  the  deed  will  be  supported 
as  a  covenant  to  stand  seised.^  A  deed  recited  that  in 
consideration  of  three  thousand  dollars  paid  by  the 
grantee,  the  grantor  gave,  granted,  sold,  and  conveyed  to 
him  certain  land,  the  grantor  reserving  the  right  to  use 
and  occupy  during  his  natural  life,  free  of  rent,  the  prop- 
erty so  granted.  The  grantee  had  married  the  daughter 
of  the  grantor,  but  she  had  died  before  the  execution  of 
the  deed.  But  she  had  left  children  who  were  alive  at 
the  time  of  the  execution  of  the  deed.  It  was  held  that 
under  the  technical  rule  forbidding  tlie  creation  of  a  free- 
hold estate  to  commence  in  futiiro,  the  deed  if  regarded 
as  a  feoffment  or  bargain  and  sale  was  void;  but  that  the 
consanguinity  existing  between  the  grantor  and  his 
grandchildren,  was  a  sufficient  consideration  for  a  cove- 
nant to  stand  seised  to  uses,  and  that  such  consideration 
might  be  averred  and  proved  although  one  entirely  dif- 
ferent was  set  forth  in  the  deed,  and  the  deed  did  not  allude 
to  such  consanguinity.  The  deed  as  a  covenant  to  stand 
seised  was  consequently  held  to  vest  the  title  in  the  grantee, 
subject  to  the  life  estate  of  the  grantor.^  So  in  regard  to 
a  deed  of  bargain  and  sale,  it  may  be  operative,  notwith- 
standing no  pecuniary  consideration  is  expressed  in  the 
deed,  as  it  may  be  proved  aliunde.^     The  recital  in  the 

Me.  5G1 ;  Jackson  v.  Delancey,  4  Oowen,  427;  Chiles  v.  Coleman,  2  Marsh. 
A.  K.  296 ;  12  Am.  Dec.  396. 

1  Bell  V.  Scammon,  15  N.  H.  381;  41  Am.  Dec.  706.  See  Corwin  v 
Corwin,  6  N.  Y.  342;  57  Am.  Dec.  453. 

'  Green  v.  Thoma^,  11  Me.  321 ;  Rollins  v.  Riley,  44  N.  H.  11 ;  Wallia 
V.  Wallis,  4  Mass.  135;  3  Am.  Dec.  210.  But  see  Trafton  v.  Hawes,  102 
Mass.  533;  3  Am.  Rep.  494;  Jackson  v.  Cadweil,  1  Cowen,  639. 

»  Wallis  V.  Wallis,  4  Mass.  135;  3  Am.  Dec.  210;  Brewer  v.  Hardy,  22 
Pick.  380;  33  Am.  Dec.  747. 

*  Gale  V.  Coburn,  18  Pick.  397.  But  see  Jackson  v.  Delancey,  4 
Cowen,  427;  Jackson  v.  Cadweil,  1  Cowen,  639. 

*  Jackson  v.  Dillon,  2  Over.  261;  Perry  v.  Price,  1  Mo.  553;  Den  v. 


§.^Sll,Sl2  CONSIDERATION.  1084! 

dooil  tluit  a  peonniary  consideration  has  been  paid,  so  far 
us  tlio  legal  effect  of  the  conveyance  as  a  deed  of  bargain 
and  sale  is  concerned,  is  conclusive.  By  this  is  meant 
simply  the  eilbct  of  the  deed  aside  from  any  question  of 
fraud/ 

§  811.      Consideration  of  paying^  grantor's  debts. — If 

an  owner  of  land  execute  a  deed  on  the  consideration 
that  the  grantee  shall  pay  all  the  debts  of  the  grantor, 
tiie  grantee,  although  he  does  not  execute  the  deed,  yet  if 
he  accepts  the  deed  and  takes  possession  of  the  lands,  is 
liound  personally  for  the  payment  of  the  debts  of  the 
grantor,  and  a  court  of  equity  will  subject  the  land  to  the 
payment  of  such  debts. ^  Though  a  part  of  the  consider- 
ation fail,  there  will  be  no  apportionment  where  a  part  of 
it  is  good.^ 

§  812.      Trust  to  distribute  estate  according-  to  will. — 

A  deed  reciting  that  the  grantor  was  aged  and  infirm, 
and  at  times  unable  to  give  attention  to  his  business, 
and  that  in  anticipation  of  his  incapacity  and  of  a  sum 
of  money,  he  conveyed  his  estate  in  trust  for  the  use  of 
himself  for  life,  and  at  his  death  to  be  distributed  accord- 
Hanks,  5  Ired.  30.  See  Ruth  v.  Ford,  9  Kan.  17 ;  Jackson  v.  Alexander 
3  Johns.  484;  3  Am.  Dec.  517. 

»  Rockwell  V.  Brown,  54  N,  Y.  210;  Hatch  v.  Bates,  54  Me.  136;  Jones 
r.  Dougherty,  10  Ga,  273;  Trafton  v.  Hawes,  102  Mass.  541;  3  Am.  Rep. 
494;  Jones  ?;.  Dougherty,  10  Ga.  273;  Hartshorn  v.  Day,  19  How.  211. 
And  see  Winans  v.  Peebles,  31  Barb.  371 ;  Thompson  v.  Thompson,  9 
Ind.  323;  68  Am.  Dec.  638;  Hallocher  v.  Hallocher,  62  Mo.  267;  Kerrz;. 
Birnie,  25  Ark,  225 ;  Lake  v.  Gray,  35  Iowa,  461 ;  Randall  v.  Ghent,  19 
Ind.  271;  Barker  v.  Koneman,  13  Oal.  9. 

'  Vanmeter's  Executors  v.  Vanmeters,  3  Gratt.  148.  See  Buffum  v. 
Green,  5  N.  H.  71 ;  20  Am.  Dec.  562. 

^  Wil-son  V.  Webster,  Morris,  312;  41  Am.  Dec.  230.  See  as  to  decla- 
rations of  grantor  as  part  of  the  res  geslx  to  prove  consideration,  Sutton 
V.  Reagan,  5  Blackf.  217 ;  33  Am.  Dec.  466.  Signing  a  note  as  a  surety  is 
a  valid  consideration :  Grigsby  v.  Schwartz,  83  Cal.  278.  A  deed  is  sup- 
ported by  a  valuable  consideration  where  the  grantee  discharges  a  debt 
due  to  him  by  a  third  person  to  whom  his  grantor  is  indebted  in  an 
er4ual  amount,  and  the  claim  against  the  grantor  is  canceled :  Smith  v. 
AVestall,  76  Tex.  509. 


1085  CONSIDERATION.  §  813 

ing  to  the  provisions  of  his  will  before  made,  is  supported 
by  a  sufficient  consideration.  It  passes  the  legal  title  to 
the  trustees,  and  cannot  be  revoked.^ 

§  813.  Valuable  consideration  as  protection  to  bona 
fide  purchasers. — In  order  that  a  person  may  claim  that 
he  occupies  the  position  of  a  bona  fide  purchaser,  when 
questions  arise  as  to  the  priority  of  two  or  more  titles  or 
claims  to  the  same  propert}^,  it  is  essential  as  one  of  the 
facts  giving  him  this  character  that  he  has  acquired  his 
right  for  a  valuable  consideration.  A  person  who  is  a 
mere  volunteer,  having  acquired  title  by  gift,  inheritance, 
or  some  kindred  mode,  cannot  come  within  the  scope  of 
the  term  '^bona  fide  purchaser."  ^  To  enable  the  grantee  to 
claim  protection  as  a  bona  fide  purchaser  he  must  have 
parted  with  something  possessing  an  actual  value,  capable 
of  being  estimated  in  money,  or  he  must  on  the  faith  of 
the  purchase  have  changed,  to  his  detriment,  some  legal 
position  that  he  before  had  occupied.* 

^  Turner  v.  Turner,  1  Mon.  243.  A  deed  reserving  a  life  estate  in  the 
grantor  is  not  void  for  want  of  consideration  where  land  is  conveyed  pur- 
suant to  a  request  by  a  person  desirous  of  devising  to  the  grantor  only  a 
life  estate  with  remainder  to  the  grantee  without  changing  his  will: 
Jenkins  v.  Adcock,  5  Tex.  Civ.  App.  466. 

«  Swan  V.  Legan,  1  McCord  Eq.  227;  Morse  v.  Wright,  60  Cal.  260; 
Upshaw  V.  Hargrove,  6  Smedes  &  M.  286;  Roseman  v.  Miller,  84  111.  297; 
Bishop  V.  Schneider,  46  Mo.  472;  2  Am.  Rep.  533;  Aubuchon  v.  Bender, 
44  Mo.  560;  Bowen  v.  Prout,  52  111.  354;  Boon  v.  Barnes,  23  Miss.  136; 
Frost  v.  Beekman,  1  Johns.  Ch.  288;  Patten  v.  Moore,  32  N.  H.  382; 
Everts  v.  Agnes,  4  Wis.  343;  65  Am.  Dec.  314;  Evans  i;.  Tempieton,  69 
Tex.  375;  5  Am.  St.  Rep.  71. 

»  Union  Canal  Co.  v.  Young,  1  Whart.  410;  30  Am.  Dec.  212;  Spur- 
lock  V.  Sullivan,  36  Tex.  511 ;  Webster  v.  Van  Steenbergh,  46  Barb.  211; 
Haughwout  V.  Murphy,  21  N.  J.  Eq.  (6  Green,  C.  E.)  118;  Reed  v.  Gan- 
non, 3  Daly,  414;  Pickett  v.  Barron,  29  Barb.  505;  Penficld  v.  Dunbar, 
64  Barb.  239;  Roxborough  v.  Messick,  6  Ohio  St.  448;  67  Am.  Dec.  346; 
McLeod  V.  Nat.  Bank,  42  Miss.  99;  Dickerson  v.  Tillinghast,  4  Paige, 
215;  25  Am.  Dec.  528;  Williams  v.  Slielly,  37  N.  Y.  375;  Delancey  v. 
Stearns,  66  N.  Y.  157;  Lawrence  v.  Clark,  36  N.  Y.  128;  Weaver  v.  Bar- 
den,  49  N.  Y,  286;  Brown  v.  Welch,  18  111.  343;  68  Am.  Dec.  549;  Keys 
v.  Teat,  33  111.  316;  Wood  v.  Chapin,  13  N.  Y.  509;  67  Am.  Dec.  62; 
Westbrook  v.  Gleason,  79  N.  Y.  23,  36;  Cary  v.  White,  52  N.  Y.  138; 
Palmer  v.  Williams,  24  Mich.  328;  Seward  v.  Jackson,  8  Cowen,  406, 
430 ;  Story  v.  Lord  Windsor,  2  Atk.  630 ;  llardingham  v.  Nicholls,  3  Atk. 


5  S14  coN>^iDii:RATroN.  1086 

§  SI+.     Adequacy  of  cousideration. — Where  the  deed 
is  taken  in  good  faith,  the  amount  of  the  consideration 
paid  is  ininiatorial.^     But  it  is  held    that  a  payment  in 
confederate   money  is  not  a  vahiable  consideration,  and 
that  a  grantee  paying  for  the  land  in  such  money  cannot 
be  regarded  as  a  bona  fide  purchaser  for  a  valuable  con- 
sideration.^    But  the  consideration  paid  may  be  so  small 
and  inadequate  as  to  justify  a  suspicion  of  fraud.     It  is 
said  "that  in  order  to  protect  himself  against  the  claim  of 
a  prior  donee,  or  of  a  creditor,  the  party  assuming  to  be  a 
purchaser  for  a  valuable  consideration,  must  prove  a  fair 
consideration,  not  up  to  the  full  value,  but  a  price  paid 
which  would  not  cause  surprise,  or  make  anyone  exclaim, 
'he  got  the  land  for  nothing,  there  must  have  been  some 
fraud  or  contrivance  about  it!'"*     Where  all  the  circum- 
stances attending  the  transaction  show  that  the  grant  was 
intended  as  a  gift,  the  fact  that  the  grantee  actually  paid 
a  merely  nominal  consideration  in    money  will  not  cause 
him  to  be  treated  as  a  purchaser  for  a  valuable  considera- 
tion within  the  meaning  of  the  recording  laws,  and  he  is 
not  entitled  to  priority  over  a  prior  unrecorded  deed.* 

304 ;  Tourville  v.  Naish,  3  P.  Wms.  306 ;  Baggarly  v.  Gaither,  2  Jones  Eq. 
80;  Bowen  v.  Prout,  52  III.  354;  Gerson  v.  Pool,  31  Ark.  85;  Keirsted  v. 
Avery,  4  Paige,  9 ;  Glidden  v.  Hunt,  24  Pick.  221 ;  Conard  v.  Atlantic 
Ins.  Co.,  1  Peters,  386;  Curtis  v.  Leavitt,  15  N.  Y.  11. 

*  See  Seward  v.  Jackson,  8  Cowen,  406,  430;  Wood  v.  Chapin,  13 
N.  Y.  509;  67  Am.  Dec.  62;  Pickett  v.  Barron,  29  Barb.  505;  Gary  v. 
White,  52  N.  Y.  138. 

»  Sutton  V.  Sutton,  39  Tex.  549;  Willis  v.  Johnson,  38  Tex.  303. 

»  Worthy  v.  Caddell,  76  N.  C.  82,  86.  Where  an  attack  is  made  upon 
an  executed  conveyance,  the  fact  that  the  consideration  is  grossly  inade- 
quate can  be  regarded  only  as  evidence  of  fraud,  and  of  itself  is  not  suf- 
ficient to  set  it  aside :  Davidson  v.  Little,  22  Pa.  St.  245;  60  Am.  Dec.  81. 

*  Ten  Eyck  V.  Witbeck,  135  N.  Y.  40;  31  Am.  St.  Rep.  809.  In  that 
caee  the  owner  of  a  farm  of  the  value  of  twenty  thousand  dollars  had 
conveyed  it  to  his  wife,  and  six  years  afterward  conveyed  it  to  his 
daughter.  The  deed  to  the  daughter  stated  that  it  was  made  in  con- 
sideration of  the  sum  of  ten  dollars,  and  the  payment  of  the  entire  net 
proceeds  of  the  farm  to  the  grantor  annually  during  his  lifetime,  and 
one-tliird  of  such  proceeds  to  his  wife  in  case  she  survived  him,  one-third 
to  another  daughter  for  the  same  length  of  time,  anil  provided  for  dis- 
posing of  the  proceeds  in  a  specified  way  in  other  coutingencies,  and  the 


1087  CONSIDERATION.  §  815 

§  815.      Antecedent  debts  as    consideration. — On    the 

question  of  whether  an  antecedent  debt  can  be  a  valuable 
consideration,  so  as  to  enable  the  grantee  to  claim  the 
benefit  of  being  a  bona  fide  purchaser,  there  has  been  a 
wide  difference  of  opinion.  In  many  cases  there  have 
been  other  ciicumstances  to  be  looked  to  besides  the  ante- 
cedent debt  in  determining  whether  the  grantee  is  a  pur- 
chaser for  value.  There  may  be  on  the  part  of  the 
grantee  a  forbearance  from  suing,  from  enforcing  a  legal 
right,  which  is  in  contemplation  of  law,  in  many  in- 
stances, a  sufficient  consideration  to  support  a  transfer. 
Where  the  creditors  of  an  owner  of  land  encumbered  with 
a  vendor's  lien  for  the  purchase  money,  took  a  deed 
from  him  without  advancing  any  new  consideration  as 
security  for  the  debts  of  the  owner  contracted  prior  to 
his  purchase  of  the  land  from  his  vendor,  the  title  of  the 
creditors,  it  was  held,  was  subject  to  the  lien  of  the  ven- 
dor.'    It  is  said  by  Denio,  J.,  that,  "Where  a  conveyance 

deed  also  gave  power  to  the  grantee  to  sell  the  property  after  the  grant- 
or's deatli.  The  second  deed  was  recorded  first,  but  in  an  action  of 
ejectment,  it  was  held  to  be  no  bar  to  an  action  of  ejectment  by  those 
claiming  under  the  first  deed.  The  court  said:  "We  deem  it  unneces- 
sary to  undertake  to  determine  here  what  degree  of  adequacy  of  price  is 
required  to  uphold  a  subsequent  deed  first  recorded.  Upon  this  branch 
of  the  case  we  have  no  occasion  to  go,  further  than  to  hold  that  a  small 
Bum,  inserted  and  paid  perhaps  because  of  a  popular  belief  that  some 
slight  money  consideration  is  necessary  to  render  tiie  deed  valid,  will 
not  of  itself  satisfy  the  terms  of  the  statute,  where  it  appears  upon  the 
face  of  the  conveyance,  or  by  other  competent  evidence,  that  it  was  not 
the  actual  consideration."  The  court  states  that  the  cases  of  Fulienwider 
V.  Roberts,  4  Dev.  &  B.  27 ;  Worthy  v.  CaddeU,  76  N.  C.  82;  Upton  v. 
Bassett  Cro.  Eliz.  445;  Doe  v.  Routledge,  Cowp.  705,  and  Metcalie  v.  Pul- 
vertoft,  1  Ves.  &  B.  183,  in  so  far  as  they  hold  that  a  purely  nominal  con- 
sideration is  insufficient  to  protect  an  innocent  purchaser,  are  in  harmony 
with  the  views  expressed  by  the  court,  and  that  so  far  as  the  cases  of 
Webster  v.  Van  Steenburgh,  46  Barb.  211,  and  Hendy  v.  Smith,  49  Hun, 
610,  hold  a  contrary  doctrine,  they  do  not  meet  with  the  approval  of  the 
court.  It  is  held  that  where  property  worth  eight  hundred  dolhirs  is 
sold  for  two  hundred  doilarn,  the  inadequacy  of  consi<lerati(:n  will  not 
avoid  the  deed:  Feigiey  v.  Feigley,  7  Md.  537;  61  Am.  Dec.  375. 

*  Johnson  v.  Graves,  27  Ark.  557.  The  court,  per  Stephenson,  J., 
said:  "The  object  of  the  law  in  all  questions  arising  between  vendor  and 
vendee  res2)ecting   the  equitable  lien  of  the  former,  is  to  give  the  ven- 


g  SI5  CONSIDERATION.  1085 

is  made,  or  a  security  taken,  the  consideration  of  which 
was  an  antecedent  debt,  the  grantee  or  party  taking  the 
securitv  is  not  looked  upon  as  a  bona  fide  purchaser.  The 
expression  in  tlie  statute  is  borrowed  from  the  language 
of  courts  of  equity,  and  must  be  interpreted  in  the  sense 
in  which  it  is  there  understood;  and  it  is  well  settled 
that  a  grantee  or  encumbrancer  who  does  not  advance 
anything  at  the  time,  takes  the  interest  conveyed,  sub- 
ject to  any  prior  equity  attaching  to  the  subject."^     In    a 

dor  the  benefit  of  his  lien  as  against  the  vendee  and  those  holding  under 
him  having  notice  of  the  lien,  but  to  save  him  harmless  whose  money- 
has  been  advanced  in  good  faith  without  this  notice,  and  upon  the 
vendor's  declaration  in  his  deed.  Let  us  apply  this  principle  to  the  case 
at  the  bar.  The  vendee,  Bell,  executes  to  Johnson  his  deed  of  trust,  to 
secure  certain  of  his  creditors,  which  debts  he  had  contracted  prior  to 
his  purchase  of  the  land  from  Graves.  This  deed,  at  most,  gives  but  an 
equitable  title  to  Bell's  creditors,  and  which  they  must  proceed  to  exe- 
cute before  they  can  gain  the  legal  title.  They  have  by  taking  this  se- 
■  curity  in  nowise  impaired  Bell's  liability  to  them,  but  would  have  all 
the  remedy,  after  taking  this  security,  they  had  before.  Nor  are  they 
in  worse  condition  by  giving  the  vendor,  Graves,  priority  over  them  than 
they  were  when  they  gave  Bell  the  credit.  If  they  had  taken  the  land 
in  satisfaction  of  the  debt,  or  had  made  advances  upon  the  faith  of  the 
title  as  it  appeared  of  record,  they  would  have  occupied  a  different  atti- 
tude in  the  case ;  but  where  creditors  of  the  vendee  take  a  conveyance 
from  him  merely  as  security  for  their  antecedent  debts,  without  advanc- 
ing any  new  consideration,  they  are  postponed  to  the  rights  of  the 
vendor :  2  Wash.  Real  Prop.  (2d  ed.  89) ;  Brown  v.  Vanlier,  7  Humph. 
249;  Harris  v.  Horner,  1  Dev.  &  B.  Eq.  455;  30  Am.  Dec.  182;  Eubanka 
V.  Boston,  5  Mon.  286;  McGown?;.  Yerks,  6  Johns.  Oh.  450;  Chance  v. 
McWhorter,26  Ga.  315;  Repp  v.  Repp,  12  Gill  &  J.  341;  Dickinson?;. 
Tillinghast,  4  Paige,  215;  25  Am.  Dec.  528." 

'  In  Wood  V.  Robnison,  22  N.  Y.  564,  567.  And  see,  also,  in  support 
of  this  view  or  relating  to  it,  Gary  v.  White,  52  N.  Y.  138 ;  Craft  v.  Rus- 
sell, 67  Ala.  9;  Mingus  v.  Condit,  23  N.  J.  Eq.  (8  Green,  C.  E.)  313; 
Pweeney  r.Bixler,  69  Ala.  539;  Halstead  v.  Bank  of  Kentucky,  4  Marsh. 
J.  J.  554;  Ashton'B  Appeal,  73  Pa.  St.  153;  Metrop.  Bank  v.  Godfrey,  23 
111.  579;  Manhattan  Co.  v.Evertson,  6  Paige,  457;  Pancoast  v.  Duval,  26 
N.  J.  Eq.  445;  Upshaw  v.  Hargrove,  6  Smedes  &  M.  286;  Morse  v.  God- 
frey, 3  Story,  364;  Alexander  v.  Caldwell,  55  Ala.  517;  Gafford  v.  Stearns," 
61  Ala.  434;  Boon  v.  Barnes,  23  Miss.  136;  Wheeler  v.  Kirtland,  24  N.J. 
Eq.  552;  Short  v.  Battle,  52  Ala.  456;  Padgett  v.  Lawrence,  10  Paige, 
170;  40  Am.  Dec.  232;  Haynsworth  v.  Bischoff,  6  Rich.  159;  Van  Heusen 
V.  Radcliff,  17  N.  Y.  580;  72  Am.  Dec.  480;  Weaver  v.  Barden,  49  N.  Y. 
286;  Thurman  v.  Stoddard,  63  Ala.  336;  Jones  v.  Robinson,  77  Ala.  499; 
Wells  t;.  Morrow,  38  Ala.  125;  Spurlock  v.  Sullivan,  36  Tex.  511;  Swen- 


N 


1089  CONSIDERATION.  §  816 

case  in  Kansas,  the  rule  that  a  party  who  takes  a  deed  in 
payment  of  a  pre-existing  debt  is  not  a  bona  fide  pur- 
chaser, is  held  to  be  applicable  only  where  the  property 
is  purchased  from  an  apparent  owner,  but  w^ho  is  not 
such,  in  fact,  or  not  in  law  or  equity  the  real  owner,  and 
not  applicable  where  the  purchaser  takes  the  property  in 
good  faith  from  the  true  owner,  in  consideration  of  the 
relinquishment  of  a  pre-existing  debt.^ 

§  816.  The  other  view. — In  California,  it  is  held  that 
where  a  mortgage  is  given  as  security  for  a  pre-existing 
debt,  the  mortgagee  is  a  purchaser  for  a  valuable  consid- 
eration within  the  meaning  of  the  registry  acts,  giving 
priority  to  the  one  whose  conveyance  is  first  recorded.^ 
In  a  case  in  Mississippi,  the  court  said:  "It  is  now  well 
settled  that  if  a  party  take  a  security  or  specific  property 
in  satisfaction  and  discharge  of  a  pre-existing  debt,  which 
is  thereby  extinguished,  he  is  a  bona  fide  purchaser,  and 
not  afi'ected    by   previous    equities."  *     And    likewise    in 

eon  V.  Seale  (Tex.  Oiv.  App.,  May  9,  1894),  28  S.  W.  Rep.  143;  Over- 
street  V.  Manning,  67  Tex.  657;  4  S.  W.  Rep.  448;  Steffian  v.  Bank,  69 
Tex.  513;  6  S.  W.  Rep.  823;  Golson  v.  Fielder,  2  Tex.  Civ.  App.  400;  21 
S.  W.  Rep.  173;  Piielps  v.  Fockler,  61  Iowa,  340;  14  N.  W.  Rep,  729;  16 
N.  W.  Rep.  210;  Koon  v.  Tramel,  71  Iowa,  132;  32  N.  W.  Rep.  243;  Ed. 
wards  v.  McKernan,  55  Midi.  520;  22  N.  W.  Rep.  20;  Boxheimer  v. 
Gunn,  24  Mich.  372;  Moore  v.  Ryder,  65  N.  Y.  438;  Wood  v.  Robinson, 
22  N.  Y.  564;  Dickerson  v.  Tillinghast,  4  Paige,  215;  25  Am.  Dec.  528; 
Weaver  v.  Barden,  49  N.  Y.  286 ;  De  Lancey  v.  Stearns,  66  N.  Y.  157. 

1  Ruth  V.  Ford,  9  Kan.  17. 

*  Frey  v.  Clifford,  44  Cal.  335.  And  see,  as  to  commercial  paper, 
Payne  r.  Bensley,  8  Cal.  260;  68  Am.  Dec.  318;  Robinson  v.  Smith,  14 
Cal.  94;  Nagle  v.  Lyman,  14  Cal.  450.  And  see,  generally.  Work  v. 
Brayton,  5  Ind.  396;  Coddington  v.  Bay,  20  Johns.  637;  11  Am.  Dec. 
342;  Lawrence  v.  Clark,  36  N.  Y.  128;  Youngs  v.  Lee,  12  N.  Y.  551; 
Meads  v.  Merchants'  Bank,  25  N.  Y.  143;  82  Am.  Dec.  331 ;  Mobile  Life 
Ins.  Co.  V.  Randall,  71  Ala.  220. 

'  Love  V.  Taylor,  26  Miss.  567,  574,  and  cases  cited.  See,  also,  Wert  v. 
Naylor,  93  Ind.  431 ;  Heath  v.  Silverthorn,  39  Wis.  416;  Chaffee  i-.  Atlaa 
Lumber  Co.,  43  Neb.  224 ;  47  Am.  St.  Rep.  753 ;  Wright  r.  Bundy,  11  Ind. 
398;  Babcock  v.  Jordan,  24  Ind.  14;  Doolittle  w.Cook,  75  111.  354;  Royer 
t).  Keystone  Nat.  Bank,  83  Pa.  St.  248;  Cummings  v.  Boyd,  83  Pa.  St.  372; 
Busey  v.  Heese,  38  Md.  264;  Cecil  Bank  v.  Heald,  25  Md.  562;  Jackson 
r.  Reid,  30  Kan.  10;  1  Pac.  Rep.  308;  Ruth  v.  Ford,  9  Kan.  17;  Haynea 
I»EEDS,  Vol.  11.  —  69 


§^817,818  CONSIDERATION.  1090 

Alnbiima,  where  a  creditor  takes  an  absolute  deed  in  pay- 
ment of  a  pre-existing  debt,  he  becomes  a  purchaser  for 
a  vahiable  consideratiou  entitled  to  the  protection  of  the 
rciiistry  acts.'  But  if  the  indebtedness  is  not  satisfied, 
and  the  creditor  takes  a  mortgage  as  security  for  its  pay- 
ment, he  is  not  such  bona  fide  purchaser,  and,  if  the  con- 
sideration be  partly  an  old  debt,  and  partly  one  created 
at  the  time,  he  will  be  protected  only  to  the  extent  of  the 
new  debt.^ 

§  817.  Presumption  that  deed  states  true  considera- 
tion.— Tlie  statement  in  the  deed  that  a  certain  sum  has 
been  paid  as  the  consideration  is  an  admission  or  acknowl- 
edgment of  the  grantor  that  such  is  the  fact,  and  such 
statement  may  be  accepted  as  prima  facie  evidence  of  its 
truth.*  Hence,  where  a  person  has  the  title  vested  in 
him,  and  executes  a  deed  reciting  a  valuable  considera- 
tion, it  is  never  necessary  as  against  him,  or  those  claim- 
ing under  him,  or  as  against  a  stranger,  to  show  what 
reason,  other  than  the  grantor's,  will  lead  him  to  execute 
it.*  *'A  deed  of  itself  imports  a  consideration.  The  re- 
cital of  a  consideration  is  conclusive  for  the  purpose  of 
supporting  the  deed  against  the  grantor  and  his  heirs. 
A  voluntary  conveyance  or  gift  to  a  stranger  is  good 
against  the  grantor  and  his  heirs.  It  is  also  good  against 
a  subsequent  purchaser  for  value  in  the  absence  of  actual 
fraud."  5 

§  818.  Presumption  as  ag-ainst  strang-ers — Conflict  in 
the  decisions — Comments. — While  there  can  be  no  doubt 

V.  Eberhardt,  37  Kan.  308;  15  Pac.  Rep.  168;  Lawrence  v.  Tucker,  23 
How.  14 ;  Shirras  v.  Craig,  7  Oranch,  34 ;  Conrad  v.  Atlas  Ina.  Co.,  1  Pet. 
386;  Soule  v.  Shotwell,  52  Miss.  236. 

^  Saffold  V.  Wade's  Executor,  51  Ala.  214;  Ohio  Life  Ins.  &  Trust  Co. 
V.  Ledyard,  8  Ala.  866. 

'  Wells  V.  Morrow,  38  Ala.  125. 

*  Belden  v.  Seymour,  8  Conn.  310;  21  Am.  Dec.  661 :  Barter  v.  Green- 
leaf,  65  Me.  405;  Bayliss  V.Williams,  6  Cold.  440;  Clemenla  v.  Lan- 
drum,  26  Ga.  401. 

*  Rockwell  V.  Brown,  54  N.  Y.  210. 

'  Wells,  J.,  in  Trafton  v.  Hawes,  102  Mass.  533,  541,  3  Am.  Rep.  494, 
citing  Beal  v.  Warren,  2  Gray,  447. 


J 


1091  CONSIDERATION.  §  819 

that  as  against  the  grantor  himself  and  his  heirs,  the  ac- 
knowledgment in  the  deed  that  a  certain  consideration 
has  been  paid  is  prima  facie  evidence  of  the  truth  of  the 
fact  recited,  yet  when  it  comes  to  apply  this  rule  to  stran- 
gers, the  reasons  on  which  it  is  founded  when  applied  to 
the  grantor  do  not  so  forcibly,  if  at  all,  appear.  A  dis- 
tinction can  well  be  drawn  between  the  effect  as  evidence 
of  a  statement  made  by  the  grantor  when  he  alone  is 
affected  by  its  truth  or  falsity,  and  the  effect  of  such  state- 
ment when  the  rights  of  others  are  involved.  In  some 
courts  no  distinction  is  made  between  the  parties  them- 
selves and  strangers  as  to  the  prima  facie  evidence  of  the 
recital  acknowledging  the  payment  of  the  consideration. 
In  others,  this  rule  is  confined  in  its  application  to  cases 
affecting  the  parties  only,  and  its  existence  when  applied 
to  strangers  strenuously  denied.  It  is  thought  that  this 
sul)ject  is  of  sufficient  importance  to  warrant  a  somewhat 
fuller  discussion  than  the  mere  statement  that  in  some 
States  the  one  view  prevails,  and  in  others  the  opposite. 
Hence,  in  the  following  sections  will  be  found  instances 
in  which  each  view  of  the  law  has  by  different  courts 
been  taken. 

§  819.      Decisions  that  the  rule  applies  to  strang-ers. — 

In  some  of  the  States  the  rule  is  applied  not  only  to  par- 
ties, but  to  strangers  also.  As  an  instance  we  may  cite 
the  case  where  an  owner  of  land  conveyed  it  to  an  infant, 
reciting  in  the  deed  that  the  consideration  had  been  paid 
by  such  infant.  A  judgment  creditor  of  the  father  of  the 
infant  caused  the  land  to  be  sold  on  execution  on  his 
judgment,  alleging  that  the  father  had  paid  the  consider- 
ation, and  had  caused  the  deed  to  be  made  to  his  child 
for  the  purpose  of  defrauding  his  creditors,  and  that 
thereby  he  liad  a  resulting  trust  in  the  land  which  could 
be  sold  under  execution.  The  court  held  that  the  recital 
of  the  payment  of  the  consideration  by  the  infant  was 
prima  facie  evidence  of  this  fact,  and  that  the  party  at- 
tacking the  deed  must  show  by  clear  and  satisfactory  evi- 


^  SIO  CONSIDERATION.  1092 

tloiu'o  the  falsity  of  this  recital.'  An  owner  of  land 
conveyed  the  same  to  one  person,  and  before  the  regis- 
tration of  the  deed  conveyed  the  same  land  to  another, 
who  caused  his  deed  to  be  first  placed  on  record.  The 
latter,  if  he  had  taken  his  deed  without  notice  of  the  exe- 
cution of  the  prior  one,  and  had  paid  the  consideration, 
would,  of  course,  have  the  better  title,  and  the  court  held 
that  tlie  recital  in  his  deed  of  the  payment  of  the  con- 
sideration was  evidence  of  such  fact  as  between  him 
and  the  prior  grantee.^  So  in  another  case  an  owner  of 
land  conveyed  it  by  deed,  and  the  grantee  executed  a 
mortgage  to  his  grantor  to  secure  the  payment  of  the 
purchase  price.  Before  the  mortgage  was  recorded,  the 
grantee  sold  the  land  to  another,  the  deed  reciting  that 
a  consideration  of  a  certain  amount  had  been  paid.  In 
the  contest  for  priority  between  the  first  grantor,  and  also 
mortgagor,  and  the  second  grantee,  upon  the  issue  whether 
the  latter  was  a  purchaser  in  good  faith  and  for  value,  it 
was  decided  that  the  recital  in  the  deed  of  payment  of 
the  consideration  was  evidence  of  such  payment.^  "  The 
acknowledgment  in  a  deed  of  the  receipt  of  the  consider- 
ation money,"  said  Sutherland,  J.,  speaking  for  the  court, 
"  is  prima  facie  evidence  of  its  payment.  It  is  equivalent 
to,  and  like  a  receipt  for  money.  It  is  liable  to  be  ex- 
plained or  contradicted;  but,  until  impeached,  it  is  legal 
and  competent  evidence  of  payment.  Nor  is  its  opera- 
tion confined  to  the  immediate  parties  to  the  deed.  It 
does  not  operate  by  way  of  estoppel,  but  as  evidence 
merely,  and  must  have  the  effect  of  sustaining  the  deed 

^  Gaugh  V.  Henderson,  2  Head,  628.  But  in  the  subsequent  case  of 
Bayliss  v.  Williams,  6  Cold.  445,  the  same  court  said  that  this  point  did 
not  geem  to  have  been  carefully  discussed  or  considered. 

'  Wood  V.  Chapin,  13  N.  Y.  (3  Kern.)  509;  67  Am.  Dec.  62.  Where  a 
bargain  and  sale  deed  recites  a  consideration  a  prima  facie  case  is  made 
sufficient  to  support  a  verdict  in  favor  of  the  grantee  as  against  the 
grantor's  heirs  where  there  is  no  evidence  to  overcome  it :  Mowry  v. 
Mowry,  103Cal.314. 

'  Jackson  V.  McChesney,  7  Cowen,  360;  17  Am.  Dec.  521,  and  cases 
cited. 


1093  CONSIDERATION.  §  820 

by  establishing,  prima  facie,  the  consideration  for  which 
it  was  given,  against  any  person  who  may  seek  collater- 
ally to  impeach  it.'" 

§  820.  Decisions  that  the  rule  does  not  apply  to 
strangers. — In  a  case  in  New  Hampshire,  a  deed  which 
purported  to  have  been  executed  upon  a  pecuniary  con- 
sideration, and  which  acknowledged  the  receipt  of  its 
payment,  was  attacked  by  a  creditor  as  being  fraudulent 
against  existing  creditors  of  the  vendee.  The  court  held 
that  the  recital  of  the  payment  of  the  consideration  was 
not  evidence  of  the  fact  as  against  such  creditors.^     In  a 

1  Jackson  v.  McChesney,  supra.  See,  also,  Medley  v.  Mask,  4  Ired.  Eq. 
339;  Cocke  v.  Trotter,  10  Yerg.  213;  Wliitbeck  v.  Whitbeck,  9  Cowen,  266; 
18  Am.  Dec.  503;  Hayward's  Heirs  v.  Moore,  2  Humph.  584;  West  Port- 
land Homestead  Assn.  v.  Lawnsdale,  19  Fed.  Rep.  291 ;  Galland  v.  Jack- 
man,  26  Cal.  79;  85  Am.  Dec.  172;  Long  v.  DoUarhide,  24  Cal.  218.  See 
Gillan  v.  Metcalf,  7  Cal.  137. 

'  Kimball  v.  Fenner,  12  N.  H.  248.  Parker,  C.  J.,  in  delivering  the 
opinion  of  the  court,  said:  "The  question  may  be  stated,  then,  in  other 
words,  whether  a  deed,  which  purports  to  be  executed  upon  a  pecuniary 
consideration,  and  contains  an  acknowledgment  of  the  receipt  of  it,  fur- 
nishes of  itself  evidence  that  such  consideration  was  in  fact  received,  or 
whether,  as  against  existing  creditors,  it  is  not  to  be  regarded  as  a  mere 
voluntary  conveyance,  and  presumed  to  be  fraudulent  until  some  evidence 
is  offered  of  the  consideration  upon  which  it  was  executed.  There  is  no 
doubt  that  the  clause  acknowledging  the  receipt  of  a  consideration  fur- 
nishes evidence  against  the  grantor  that  the  consideration  specified  has 
been  paid,  and  this  receipt,  being  under  seal,  and  part  of  the  deed  itself, 
cannot  be  contradicted  by  him  for  the  purpose  of  defeating  the  instru- 
ment: Morse  v.  Shattuck,  4  N.  H.  229;  17  Am.  Dec.  419.  But,  for  all 
other  purposes,  the  effect  of  this  clause,  even  between  the  parties,  is 
tliat  of  a  mere  receipt,  which  may  be  contradicted;  and  it  furnishes  the 
grantee,  therefore,  only  prima  facie  evidence  of  the  consideration  upon 
which  the  deed  is  founded.  Thus,  it  may  be  shown  that  the  actual  cou- 
Bideration  was  more  than  that  expressed:  Belden  v.  Seymour,  8  Conn. 
304;  21  Am.  Dec.  661;  or  less:  Morse  v.  Shattuck,  4  N.  H.  229;  17  Am. 
Dec.  419;  or  that  it  was  iron  insteail  of  money:  McCrea  v.  Purmort,  16 
Wend.  460;  30  Am.  Dec.  103;  or  that  nothing  was  paid:  Shcphard  v. 
Little,  14  Johns.  210;  Bowen  v.  Bel!,  20  Jolms.  338;  11  Am.  Dec.  286; 
and,  of  course,  that  nothing  was  contracted  to  be  paid.  A  deed  may 
be  a  voluntary  deed,  notwithstanding  it  purports  to  be  made  upon  a 
sufficient  consideration.  Upon  what  principle  is  it  that  this  mere  re- 
ceipt, which  may  thus  be  contradicted  and  controlled  between  the 
parties,  is  even  prima  facie  evidence  of  the  payment  of  a  consideration, 
against  a  third  person,  who  shows  a  prima  facie  title  by  a  levy  on  the  laud 


JBiSMi 


^  v-Of)  CONSIDERATION.  1094 

case  in  Alabama,  there  was  a  contest  between  a  prior  and 
a  subsequent  mortgagee  of  the  same  land,  the  subsequent 
niortga^oe  attempting  to  defeat  the  prior  mortgage  on  the 
ground  that  it  was  made  to  defraud  creditors,  and  there- 
fore was  void.  It  was  hekl  that  the  recital  of  the  debt  in 
the  first  mortgage  could  not  be  taken  as  evidence  of  the 
existence  of  the  debt,  and  that  the  transaction  was  made 
in  o-ood  faith.  "These  are  but  the  written  admissions  of 
a  debtor,  which  may  be  manufactured  by  him  in  further- 

which  belonged  to  his  debtor,  and  who  is  no  party  to  the  deed,  has  in  no 
way  admitted  its  validity,  and  has,  or  may  have,  no  knowledge  respecting 
the  transaction  upon  whicli  it  is  founded?    He  is  not  in  privity  with  the 

title  of  the  grantee.    On  the  contrary,  it  is  adverse  to  him The 

execution  of  the  deed  must  be  proved,  whoever  is  the  party  contesting  it. 
Being  proved,  it  contains  the  admission  of  the  grantor  in  writing  that  a 
consideration  has  been  paid,  and  this  furnishes  evidence  of  that  fact 
against  him.  It  contains  no  admission  of  the  creditors  when  used 
against  them.  But  it  is  invalid  against  them  without  some  evidence 
that  it  is  founded  upon  a  consideration.  Is  the  admission  of  the 
grantor,  then,  evidence  against  the  creditor  to  show  that  fact?  If  i^ 
be  so,  it  must  be  either  because  the  admission  is  under  seal,  or  be- 
cause it  is  contained  in  the  deed  itself.  A  verloal  admission  or  declara- 
tion of  the  grantor  that  there  was  a  consideration  which  had  been  paid 
would  be  good  evidence  as  against  him  to  establish  that  fact,  but  not 
against  third  persons:  Braintree  v.  Hingham,  1  Pick.  245.  And  so  of  a 
mere  receipt,  or  any  other  writing  disconnected  from  the  deed :  Jacksou 
V.  Richards,  6  Cowen,  617,  623.  We  are  not  aware  of  any  rule  by  which  a 
seal  can  add  to  the  authenticity  of  the  receipt,  or  give  it  the  character 
of  competent  evidence  as  a^rainst  parties  having  no  connection  with  it; 
McCrea  v.  Purmort,  16  Wend.  474.  It  would  still  be  hearsay  evidence, 
or  rather  res  inter  alios  acta:  3  Stark.  Ev.  1300;  1  Phil.  Ev.  (ed.  1820) 
173;  Cowen  &  Hill's  ed.  229,  et  seq.,  and  notes  432,  435.  The  actual  pay- 
ment of  the  money,  or  other  thing  mentioned  in  it,  must  still  be  proved. 
And  we  are  of  opinion  that  the  fact  that  this  receipt  is  contained  in  the 
deed  does  not  add  to  its  character  as  evidence,  or  confer  upon  it  any 
tendency  to  prove  itself  against  third  persons,  which  it  would  not  have 
if  contained  in  a  separate  instrument.  It  proves  merely  that  the  grantor 
admitted  that  a  consideration  existed  which  had  been  paid,  and  not  that 
one  actually  existed  or  has  been  discharged.  It  is  a  recital  of  that  fact, 
and  thus  not  evidence  against  strangers  to  the  deed:  1  Stark.  Ev.,  289, 
§  156,  and  notes  ;  Carver  v.  Jackson,  4  Pet.  83.  It  is  said  that  the  origin  and 
purpose  of  this  admission  or  acknowledgment  in  a  deed  is  to  prevent  a 
resulting  trust  in  the  grantor,  and  that  it  is^merely  formal  or  nominal, 
and  not  designed  to  conclusively  fix  the  amount  either  paid  or  to  be  paid; 
8  Conn.  312.  Being  formal  or  nominal,  it  cannot  be  evidence  against 
third  persons  that  anything  was  paid  or  to  be  paid." 


1095  CONSIDERATION.  §  820 

ance  of  a  contemplated  fraud."  ^  This  view  is  taken  in 
Pennsylvania,  and  in  a  controversy  between  a  purchaser, 
claiming  to  be  such  for  a  valuable  consideration,  and  the 
holder  of  an  antecedent  equity,  Mr.  Chief  Justice  Lewds> 
after  stating  that  the  receipt  of  payment  is  evidence  of 
payment  against  the  grantor,  and  all  who  subsequently  de- 
rive title  from  him,  but  no  evidence  whatever  of  such  fact 
against  a  stranger,  or  even  against  a  prior  purchaser,  con- 
tinued: "Against  them  it  is  nothing  but  hearsay.  It  is  a 
mere  ex  parte  declaration,  not  under  oath,  taken  without 
any  opportunity  to  cross-examine.  It  has  been  long  set- 
tled   that    such    declarations    are    not    evidence    against 

strangers If  such  evidence  were  received  against 

strangers  for  the  purpose  of  extinguishing  their  equitable 
rights,  the  salutary  rules  established  for  ages  w^ould  be 
subverted;  hearsay  evidence  would  be  substituted  for  tes- 
timony under  the  sanction  of  an  oath,  and  all  the  advan- 
tages of  a  cross-examination  would  be  swept  away.  Under 
such  a  system  no  equitable  title  could  be  protected.  But 
it  is  urged  that  there  is  a  presumption  that  the  grantor 
and  grantee  have  acted  with  integrity.  This  may  be  so, 
but  that  is  no  reason  why  their  declarations  should  be 
given  in  evidence  against  persons  who  have  no  connec- 
tion with  them.  If  they  are  acquainted  with  material 
facts,  they  are  as  much  bound  to  deliver  their  testimony 

under  oath  as  other  persons  if  competent  witnesses 

But  the  rejection  of  a  receipt  signed  by  a  stranger  implies 
no  imputation  of  dishonesty  in  the  party  signing  it.  It 
is  always  signed  whenever  a  conveyance  is  made,  and 
proves  nothing  further,  even  against  the  grantor,  than 
that  he  has  either  received  the  purchase  money  or  lias 
taken  security  for  it.  Taking  security  for  it  is  no  pay- 
ment which  would  defeat  a  prior  title.  Bona  fide  payment 
is  an  affirmative  fact  peculiarly  witliin  the  knowledge  of 
the  party  making  such  payment  or  claiming  advantage 
from  it.  It  is,  therefore,  easy  for  him  to  prove  it.  While 
on  the  other  hand,  the  opposite  party  who  is  a  stranger 

'  De  Vendal  v.  Malone'a  Executors,  25  Ala.  272,  277. 


§§S'21,82'2  CONSIDERATION.  1096 

to  the  trivnsactioii,  miglit  have  insuperable  difficulties  in 
proving  a  negative.  It  is  against  all  the  reason  and  life 
of  the  law  that  such  a  burthen  should  be  imposed  upon 
him.'" 

§  821.  Comments. — The  cases  holding  that  the  recital 
in  a  deed  of  the  payment  of  the  consideration  is  not  evi- 
dence of  that  fact  as  against  a  stranger,  state,  as  it  seems 
to  us,  the  true  and  correct  principle.  If  the  payment  of 
the  consideration  price  is  a  fact  essential  to  the  establish- 
ment of  a  right  or  claim,  this  fact  should  be  proven  as 
are  other  facts.  The  acknowledgment  of  payment  is  an 
admission  on  the  part  of  the  grantor,  contained  in  writ- 
ing it  is  true,  but  of  no  greater  force  for  this  reason,  ex- 
cept for  its  certainty,  than  if  made  orally.  Wherever  liis 
admissions  will  bind  himself  or  others,  the  acknowledg- 
ment that  he  has  received  the  consideration,  should  as  an 
admission  have  the  effect  of  prima  facie  evidence.  But 
where  he  is  powerless  to  make  admissions  to  the  detri- 
ment of  others,  it  is  immaterial  in  what  form  he  may  put 
such  admissions.  If  he  cannot  bind  others  by  a  verbal 
ailmission,  no  good  reason  exists  for  allowing  him  to  do 
so  by  putting  it  in  writing.  The  question  is  not  as  to  the 
mode  in  which  the  admission  by  the  grantor  of  payment 
is  made,  but  as  to  his  power  to  make  it;  and  one  of  the 
jnost  firmly  established  principles  of  law  is  that  one  per- 
son shall  not  suffer  by  the  declarations  or  admissions 
made  by  another  out  of  his  presence,  without  the  oppor- 
tunity to  deny  or  cross-examine,  unless  there  is  some  re- 
lation of  privity,  mutual  interest,  or  agency  between  them. 

§  822.  Proof  of  real  consideration. — The  recital  in 
the  deed  that  the   consideration  has  been   paid  may  be 

*  Lloyd  V.  Lynch,  28  Pa.  St.  419,  424;  70  Am.  Dec.  137.  See  to  the 
same  point,  Rogers  v.  Hall,  4  Watts,  359;  Union  Canal  Co.  v.  Young,  1 
Whart.  410,  432;  30  Am.  Dec.  212;  Clark  v.  Depew,  25  Pa.  St.  509;  64 
Am.  Dec.  717;  Henry  v.  Raiman,  25  Pa.  St.  354,  360;  64  Am.  Dec.  703; 
Bolton  V.  Johns,  5  Pa.  St.  145;  47  Am.  Dec.  404;  Nolen  v.  Gwynn,  16 
Ala.  725;  Hawley  v.  Bullock,  29  Tex.  216;  Snelgrove  v.  Snelgrove,  4 
Deeaus.  Eq.  274,  287. 


1097  CONSIDERATION.  §  822 

contradicted  by  parol  evidence.  It  may  be  shown  by  such 
evidence  that  the  consideration  was  not  paid  at  all,  or  only 
partially  paid,  or  paid  in  a  different  way  from  that  stated 
in  the   deed.^     Where  there  are  two  mortgages  upon  a 

^  Altringer  v.  Capehart,  68  Mo.  441 ;  Bingham  v.  Weiderwax,  1  N.  Y. 
514;  McCrea  v.  Purmort,  16  Wend.  460;  30  Am.  Dec.  103;  Goward  v. 
Waters,  98  Mass.  599;  Baker  v.  Connell,  1  Daly,  470;  Barnum  v.  Uhilds, 
1  Sand.  62;  Morris  v.  Tillson,  81  111.  616;  Henderson  v.  Fullerton,  54 
How.  Pr.  425;  Taggart  v.  Stanberry.  2  McLean,  546;  Frink  v.  Green,  5 
Barb.  457;  Fontaine  v.  Boatman's  Bank,  57  Mo.  553;  Rhine  v.  Ellen,  36 
Cal.  362,  370;  Coles  v.  Soulsby,  21  Cal.  47,  51;  Irvine  t;.  McKeon,  23  Cal. 
472 ;  Bennett  v.  Solomon,  6  Cal.  134,  137 ;  Peck  v.  Vandenberg,  30  Cal. 
22;  Spear  v.  Ward,  20  Cal.  659,  676;  Miller  v.  McCoy,  50  Mo.  214;  Aver- 
ill  V.  Loucks,  6  Barb.  24;  Stackpole  v.  Robbins,  47  Barb.  219;  Rosboro 
V.  Peck,  48  Barb.  92;  Rose  v.  Rose,  7  Barb.  177;  Graves  v.  Porter,  II 
Barb.  593;  Sanford  v.  Sanford,  61  Barb.  302;  5  Lans.  493;  Fellows  v. 
Emperor,  13  Barb.  100;  McNulty  v.  Prentice,  25  Barb.  212;  Clapp  v. 
Terrell,  20  Pick.  250;  Halliday  v.  Hart,  30  N.  Y.  494;  Avnot  v.  Erie 
Railway  Co.,  67  N.  Y.  321 ;  Baker  v.  Union  Mutual  Life  Ins.  Co.,  43 
N.  Y.  287 ;  Huebsch  v.  Scheel,  81  111.  281 ;  Hannan  v.  Oxley,  23  Wis.  519 ; 
Hubbard  v.  Allen,  59  Ala.  283;  Paige  v.  Sherman,  6  Gray,  511;  Morris 
Canal  Co.  v.  Ryerson,  3  Dutch.  467;  Rabsuhl  v.  Lack,  35  Mo.  316;  Miller 
V.  Goodwin,  8  Gray,  542;  O'Xeale  v.  Lodge,  3  Har.  &  McH.  433;  1  Am. 
Dec.  377;  Drury  v.  Tremont  etc.  Co.,  13  Allen,  171 ;  Harper  v.  Perry,  28 
Iowa,  63;  Lawton  v.  Buckingham,  15  Iowa,  22;  Pritchard  v.  Brown,  4 
N.  H.  397;  IV  Am.  Dec.  431;  Pennsylvania  Salt  Mfg.  Co.  v.  Neel,  54 
Pa.  St.  9;  Pierce  v.  Brew,  43  Vt.  295;  BuUard  v.  Briggs,  7  Pick.  533;  19 
Am.  Dec.  292;  Hull  v.  Adams,  1  Hill,  603;  2  Denio,  310;  Anthony  v. 
Harrison,  14  Hun,  210;  Mirrray  i-.  Smith,  1  Duer,  428;  Upson  v.  Badeau, 
8  Brad.  15;  Walcot  v.  Ronalds,  2  Rob.  (N.  Y.)  620;  Banks  v.  Brown,  2 
Hill  Ch.  538;  1  Riley  Ch.  131 ;  30  Am.  Dec.  380;  Doe  v.  Beardsley,  2  Mc- 
Lean, 414;  Goodell  v.  Pierce,  2  Hill,  662;  Greenhault  v.  Davis,  4  Hill, 
647;  Carty  v.  Connolly,  91  Cal.  15;  Cardinal  v.  Hadley,  158  Mass.  352; 
35  Am.  St.  Rep.  492;  Moffatt  v.  Bulson,  96  Cal.  106;  31  Am.  St.  Rep. 
192;  Byers  v.  Locke,  93  Cal.  493;  27  Am.  St.  Rep.  215;  Fall  v.  Glover,  34 
Neb.  522;  Barbee  v.  Barbee,  108  N.  C.  581  ;  Blair  v.  Carpenter,  75  Mich. 
167;  Nichols  v.  Nichols,  123  Pa.  St.  438;  Fort  v.  Richey,  128  111.502. 
And  see,  also,  Jordan  v.  Cooper,  3  Serg.  &  R.  564;  Hamilton  v.  McGuire, 
3  Serg.  &  R.  355;  Watson  v.  Blaine,  12  Serg.  &  R.  131;  14  Am.  Dec.  669  J 
Hutchinson  v.  Sinclair,  7  Men.  291 ;  Curry  v.  Lyles,  2  Hill,  404;  Swisher 
V.  Swisher's  Admr.,  Wright,  755;  Harvey  v.  Alexander,  1  Kand.219;  10 
Am.  Dec.  519;  Higdon  v.  Thomas,  1  Har.  &  G.  139;  17  Am.  Dec.  431; 
Lingan  V.  Henderson,  1  Bland.  249;  Bowen  v.  Bell,  20  Johns.  338;  11 
Am.  Dec.  286;  Depeyster  v.  Gould,  2  Green  Ch.  474;  29  Am.  Dec.  723; 
Schemmerhorn  v.  Vanderheyden,  1  Johns.  139;  3  Am.  Dec.  304;  Kick- 
land  V.  Menasha  Woodenware  Co.,  68  Wis.  34;  60  Am.  Rep.  831;  31 
N.  W.  Rep.  471;  Wood  v.  Morawetz,  15  R.  I.  518;  9  Atl.  Rep.  427;  Sul- 


§  823  CONSIDERATION.  1098 

piece  of  land,  and  the  mortgagor  executes  a  deed  to  one  of 
the  mortgagees,  not  in  payment  of  his  debt,  but  as  an  ad- 
ditional security  only,  although  the  deed  may  recite  that 
it  is  in  consideration  of  the  grantee's  mortgage,  and  the 
balance  due  on  the  other  mortgage,  the  grantee  will  not 
be  compelled  to  pay  the  other  mortgage  debt,  but  may 
show  by  parol  evidence  what  was  the  real  consideration.^ 
When  it  becomes  necessary  in  an  action  upon  a  covenant 
of  seisin  to  ascertain  the  damages  for  the  breach,  the  true 
consideration,  and  the  fact  that  only  a  part  of  it  has  been 
paid,  may  be  proven  by  parol  evidence,  notwithstanding 
that  the  deed  recites  a  different  consideration,  and  con- 
tains an  acknowledgment  of  its  full  payment.^  So,  in  an 
action  upon  a  covenant  of  warranty,  it  may  be  shown 
that  the  true  consideration  was  greater  than  the  amount 
named  in  the  deed.^ 

§  823.  Action  for  pui-chase  price. — "In  an  action  for 
the  consideration  money  expressed  in  a  deed  for  lands 
sold,  the  clause  acknowledging  the  receipt  of  a  certain 
sum  of  money  as  the  consideration  of  the  convej^ance  or 
transfer  is  open  to  explanation  by  parol  proof.  The  only 
effect  of  this  consideration  clause  in  a  deed  is  to  estop  the 
grantor  from  alleging  that  the  deed  was  executed  without 
consideration.  For  every  other  purpose  it  is  open  to  ex- 
planation, and  may  be  varied  by  parol  proof."*  Parol 
evidence  is  also  admissible  to  show  an  additional  consid- 
eration not  inconsistent  with  the  deed.  Thus,  the  con- 
sideration of  natural  love  and  affection,  though  not 
expressed  in  the  deed,  may  be  shown  for  the  purpose  of 
sustaining  the  conveyance.^     And  a  contemplated   mar- 

livan  V.  Lear,  23  Fla.  463;  11  Am.  St.  Rep.  388;  2  So.  Rep.  846;  Calvert 
V.  Nickles,  26  S.  C.  304;  2  S.  E.  Rep.  116;  Conlan  v.  Grace,  26  Minn. 
276;  SON.  W.  Rep.  880. 

1  HuebBch  V.  Scheel,  81  111.  281. 

*  Bingham  i-.  Weiderwax,  1  Comst.  509,  514. 

»  Harper  v.  Perry,  28  Iowa,  57, 63 ;  Lawton  v.  Buckingham,  15  Iowa,  22. 

*  Barnum  v.  Childs,  1  Sand.  Ch.  58,  62,  per  Vanderpool,  J. 

"  Hannan  v.  Oxley,  23  Wis.  519,  522.  See,  also,  Preble  v.  Baldwin,  6 
CuBh.  549;  Gale  v.  Coburn,  18  Pick.  402. 


1099  CONSIDERATION.  §  824 

riage,  it  seems,  may  be  shown  as  an  additional  consider- 
ation for  a  deed  or  a  contract  to  convey.'  If  a  part  of  the 
consideration  for  a  deed  is  that  the  grantee  shall  assume 
and  pay  a  debt  secured  by  a  mortgage,  it  will  be  his  duty 
as  between  him  and  the  grantor  to  do  so,  although  the 
deed  may  be  made  subject  to  the  mortgage,  and  contain 
a  general  covenant  against  all  encumbrances  excepting 
the  mortgage,  and  may  express  as  the  consideration  sim- 
ply the  value  of  the  equity  of  redemption.^ 

§  824.  Quantity  of  land  conveyed. — If  the  land  con- 
veyed by  a  deed  is  described  by  boundaries,  and  as  "con- 
taining four  acres,  more  or  less,"  and  the  grantee  pays  the 
grantor  for  the  land  at  a  certain  rate  per  acre  for  four 
acres,  the  grantor  may  show  by  parol  evidence  that  the 
boundaries  named  in  the  deed  would  apply  to  a  tract  con- 
taining five  acres,  as  well  as  to  a  tract  containing  four 
acres;  he  may  also  show  by  parol  that  he  and  the  grantee 
employed  a  surveyor  before  the  execution  of  the  deed  to 
ascertain  the  amount  of  the  land,  under  an  agreement 
that  the  price  should  be  at  a  stipulated  sura  per  acre, 
and  that  the  grantee  paid  for  the  land  upon  the  in- 
advertent statement  of  such  surveyor,  that  the  tract  con- 
tained four  acres,  when,  in  fact,  it  contained  five;  and 
the  grantor  is  entitled  to  recover  for  the  additional  acre 
at  the  stipulated  rate.'  In  accordance  with  this  principle 
the  grantor  may  show  that  the  purchase  money  has  not 
been  paid,  and,  in  an  action  to  recover  the  purchase 
money,  he  is  not  estopped  by  the  acknowledgment  on  the 
face  of  the  deed  that  the  consideration  has  been  paid.* 

^  Miller  v.  Goodwin,  8  Gray,  542. 

'  Drury  v.  Tremont  Imp.  Co.,  13  Allen,  171.  See  Murray  v.  Smith,  1 
Duer,  412.  Where  the  consideration  for  a  deed  to  a  railroad  company  is 
that  the  grantee  shall  erect  and  maintain  its  depot  on  the  land,  and  the 
depot  is  erected  and  maintained  for  a  number  of  years  and  then  re- 
moved, the  land  does  not  revert  to  the  j^rantor,  but  he  may  maintain  an 
action  for  iiartial  failure  of  consideration :  Berkley  v.  Union  Pac.  Ry.  Co., 
33  Fed.  Rep.  794. 

*  Paige  V.  Sherman,  6  Gray,  511. 

*  Taggart  v,  Stanberry,  2  McLean,  543. 


§  825,  826  CONSIDERATION.  1100 

§   825.      Parol  promise  of  grantee  to  convey  other  land. 

Wlioro  the  grantor,  as  a  consideration  for  his  deed,  relies 
ujion  the  parol  promise  of  the  grantee  to  convey  certain 
other  land  to  him,  and  the  grantee  refuses  to  perform  his 
agreement,  the  grantor  may  recover  the  value  of  the  prop- 
erty from  the  grantee  upon  an  implied  assumpsit.  If,  in 
such  a  ease,  the  grantor  show  that  the  grantee  agreed  to 
give  another  tract  of  land  worth  a  certain  price  for  the 
land  so  convoyed,  this  is  practically  an  admission  on  the 
p:irt  of  the  grantee  that  the  value  of  the  land  conveyed 
hy  the  grantor  was  such  sum.*  And  it  may  be  observed, 
that  if  the  grantee  has  put  it  out  of  his  power  to  comply 
with  his  promise  by  conveying  to  another  person  the  land 
he  had  promised  to  convey  to  his  grantor,  the  grantor  is 
not  required  to  demand  a  deed  from  the  grantee  before 
commencing  an  action  to  recover  the  value  of  the  land.^ 
It  may  be  shown  by  parol  evidence  that  the  grantor,  for 
the  sum  stated  as  the  consideration  in  the  deed,  agreed  to 
convey  to  the  grantee  two  lots  of  land,  each  for  a  price 
agreed  upon,  that  the  grantee  paid  to  the  grantor  the 
price  agreed  to  be  paid  for  both  lots,  and  that  through 
the  grantor's  fraud  or  mistake,  the  deed  conveyed  only 
one  of  the  lots.  If  the  grantor  when  requested  to  convey 
the  other  lot  refuses  to  do  so,  the  grantee  may  recover  the 
consideration  which  he  has  paid  for  it,  with  interest.* 

§  826.  Verbal  promise. — It  may  also  be  shown  by 
parol,  in  contradiction  of  the  acknowledgment  of  the 
receipt  of  the  consideration,  that  the  grantee,  as  a  part  of 
the  consideration,  made  a  verbal  promise  that  he  would 
pay  the  grantor  whatever  he  might  receive  over  a  speci- 
fied amount  upon  the  resale  of  the  land,  and  an  action  of 

'  Bassett  v.  Bassett,  55  Me.  127. 

*  Bassett  v.  Bassett,  55  Me.  127.  Where  as  parts  of  one  transaction  a 
grantor  executes  a  deed  and  the  grantee  executes  an  agreement  to  re- 
convey,  the  execution  of  one  instrument  is  a  sufficient  consideration  to 
support  the  other:  Wilson  v.  Fairchild,  45  Minn.  203. 

*  Goodspeed  v.  Fuller,  46  Me.  141 ;  71  Am.  Dec.  572.  But  see  in  this 
connection  the  earlier  cases  in  Maine  of  Steele  v.  Adams,  1  Greenl.  1, 
and  Emery  v.  Chase,  5  Greenl.  232. 


1101  CONSIDERATION.  §§  827    828 

assumpsit  will  lie  to  recover  the  excess.*  So,  it  may  be 
shown  by  parol  evidence  for  the  purpose  of  creating  a 
resulting  trust  that  the  consideration  price  was  not  paid 
by  the  grantee,  but  by  a  third  person.^  Such  evidence 
does  not  tend  to  contradict  the  deed.  The  recital  of  pay- 
ment may  state  that  the  consideration  was  paid  by  the 
grantee,  but  it  does  not  state  that  it  was  his  money.  This 
is  a  fact  outside  of  the  conveyance. 

§  827.  Vesting-  of  title. — If  a  tract  of  land,  a  part  of  a 
Mexican  grant,  is  conveyed  in  consideration  of  an  agree- 
ment on  the  part  of  the  grantee  to  prosecute  the  claim 
before  the  courts  until  it  is  finally  confirmed,  the  title 
vests  absolutely  in  the  grantee.  In  case  he  fails  to  per- 
form his  agreement,  the  remedy  of  the  grantor  lies  in  an 
action  for  damages  for  breach  of  the  agreement.^ 

§  828.     Retention  of  purchase  money  by  grantee. — The 

grantor  may  show,  notwithstanding  the  acknowledgment 
of  payment  of  the  consideration  in  the  deed,  that  the 
grantee  retained  a  part  of  the  money  to  be  applied  to  the 
grantor's  use.*  So  it  may  likewise  be  shown  that  the  part 
of  the  money  retained  by  the  grantee  was  to  be  paid  by 
him  to  a  third  person  for  the  grantor's  benefit.^  So  it  is 
permissible  to  show  by  parol  evidence  that  the  grantee 

»  Hall  V.  Hall,  8  N.  H.  129. 

*  Pritchard  v.  Brown,  4  N.  H.  397 ;  17  Am.  Dec.  431 ;  Scoby  v.  Blan- 
chard,  3  N.  H.  170;  Dudley  v.  Botsworth,  10  Humph.  9;  51  Am.  Dec. 
690.  It  may  be  shown  by  parol  evidence  that  a  deed  made  by  a  judg- 
ment debtor  after  a  sale  on  execution  was  made  to  enable  the  grantee  to 
redeem  the  land  from  the  sale,  and  that  he  agreed  to  hold  the  property, 

nake  necessary  advances,  and  upon  a  resale,  after  deducting  what  he 
had  advanced  to  pay  the  remainder  to  the  judgment  debtor :  Byera  v. 
Locke,  93  Cal.  493;  27  Am.  St.  Rep.  212.  See,  also,  Michael  v.  Foil,  100 
N.  C.  178 ;  6  Am.  St.  Rep.  577 ;  Ryman  v.  Mosher,  71  Ind.  596 ;  McCarthy 
V.  Pope,  52  Cal.  561;  Price  v.  Sturgis,  44  Cal.  591;  Miller  v.  Kendig,  55 
Iowa,  174;  Hodges  v.  Green,  28  Vt.  358;  Hess  v.  Fox,  10  Wend.  437; 
Trowbridge  v.  Wetherbee,  11  Allen,  361 ;  Collins  v.  Tillou,  26  Conn.  368; 
68  Am.  Dec.  398;  Kintner  v.  Jones,  122  Ind.  148. 
'  Hartman  v.  Reed,  60  Cal.  485. 

*  Schillinger  v.  McCann,  6  Greenl.  314, 
»  Burbank  v.  Gould,  15  Me.  118. 


8S  v^""*!)    830  CONSIDERATION.  1102 

has  retained  a  part  of  the  consideration  money,  under  an 
aizreement  to  pay  the  note  of  the  grantor  to  a  third  per- 
son, and  in  an  action  for  money  had  and  received  to  his 
use,  such  tliird  person  may  recover  the  amount  of  the 
note  and  interest/ 

§  829.  Whether  a  g-ift  or  an  advancement. — When  a 
deed  made  hy  a  father  to  his  son,  expressed  a  considera- 
tion of  two  thousand  dollars,  parol  evidence  was  admitted 
to  show  that  no  money  was  really  paid,  hut  that  the  deed 
was  made  as  an  advancement  to  the  son.^  The  question 
whether  in  such  a  case  the  conveyance  should  be  con- 
si.lered  as  a  gift,  or  as  an  advancement,  or  partly  each, 
will  depend,  of  course,  upon  the  intent  of  the  grantor. 
And  it  is  held  that  where  land  is  conveyed  by  a  father  to 
his  son,  worth  at  least  two  thousand  dollars,  and  it  is 
shown  that  the  intention  of  the  grantor  in  making  the 
deed  was  to  make  an  advancement,  equal  to  the  advance- 
ment made  to  each  of  his  other  sons,  amounting  to  one 
thousand  dollars,  the  grantee  should  be  charged  with  ;m 
advancement  of  only  such  sum  of  one  thousand  dollars.' 
Where  a  deed  of  bargain  and  sale  recites  a  pecuniary  con- 
sideration, it  may  be  shown  that  there  was  also  the  con- 
sideration of  an  advancement  to  the  daughter  of  the 
bargainor.*  So  where  a  deed  recites  that  a  consideration 
of  so  much  money  has  been  paid,  it  may  be  shown  by 
parol  that  the  real  consideration  was  a  specified  quantity 
of  iron,  at  a  price  agreed  upon.^ 

§  830.  Reason  for  this  rule  admitting  parol  evidence 
as  to  consideration. — There  is  a  well-defined  distinction 

*  Dearborn  v.  Parks,  5  Greenl.  81 ;  17  Am.  Dec.  206. 

*  Meeker  v.  Meeker,  16  Conn.  383. 

*  Meeker  v.  Meeker,  16  Conn.  383. 

*  Hayden  v.  Mentzer,  10  Serg.  &  R.  329. 

'  McCrear.  Purmort,  16  Wend.  460;  30  Am.  Dec.  103.  This  is  re- 
garded as  a  leading  case  on  this  point,  and  the  cases  sustaining  and  in 
conflict  with  this  view  are  cited  and  commented  upon.  And  see  Nicker- 
8on  V.  Saunders,  36  Me.  413;  Emmons  v.  Littlefield,  13  Me.  233;  Bowen 
V.  Beli,  20  Johns.  338;  11  Am.  Dec.  286;  Morse  v.  Shattuck,  4  N.  H.  229; 
17  Am.  Dec.  419;  Belden  v.  Seymour,  8  Conn.  304;  21  Am.  Dec.  661. 


1103  CONSIDEKATION.  §  830 

between  a  release  and  a  mere  receipt.  A  release  extin- 
guishes an  obligation.  It  may  be  considered  as  a  convey- 
ance, inasmuch  as  it  may  be  said  to  transfer  to  the  re- 
leasee a  right  due  to  the  releasor.  It,  therefore,  as  an 
instrument  in  writing  cannot  be  contradicted  by  parol 
evidence.  But  a  receipt  is  a  mere  admission  of  payment 
entitled  to  some  weight  as  an  admission,  but  subject  to 
explanation  or  contradiction.  It  is  at  the  present  time 
unnecessary  to  insert  an  acknowledgment  of  the  receipt 
of  the  consideration  in  the  deed  at  all,  as  a  writing  im- 
ports a  consideration;^  and  even  if  it  did  not,  the  grantor 
could  not  defeat  his  own  voluntary  deed.  The  reasons  on 
which  the  rule  allowing  parol  evidence  to  be  received  to 
show  the  true  consideration  of  a  deed  are  very  fully  ex- 
plained in  a  case  in  Kentucky.  As  an  able  exposition  of 
the  law  on  this  subject  we  quote  the  language  of  Mr.  Jus- 
tice Robertson,  who  says:  "The  authorities  on  this  sub- 
ject in  England,  as  well  as  in  the  States  of  this  Union, 
are  various  and  contradictory.  But  we  believe  that  the 
consistent  doctrine,  and  that  which  accords  best  with 
analogy,  and  with  the  practice  and  understanding  of 
mankind,  is  that  an  acknowledgment  in  a  deed  of  the 
receipt  of  the  consideration  is  only  prima  facie  evidence 
of  payment.  The  acknowledgment  is  inserted  more  for 
the  purpose  of  showing  the  actual  amount  of  considera- 
tion than  its  payment;  and  it  is  generally  inserted  in 
deeds  of  conveyance,  whether  the  consideration  has  been 
paid,  or  only  agreed  to  be  paid.  If  tiie  consideration  has 
not  been  paid,  such  an  acknowledgment  in  a  deed  would 
be  intended  to  mean  that  the  specified  amount  had  been 
assumed  by  note  or  otherwise.  An  ordinary  receipt  is 
not  conclusive  evidence  of  the  facts  attested  by  it.  A 
separate  receipt  for  the  price  of  land  would,  it  seems  to 
us,  be  much  stronger  evidence  that  the  money  had  been 
paid,  than  the  customary  acknowledgment  in  the  deed  of 
conveyance.  At  all  events,  it  should  bo  as  cogent.  But 
it  may  be    contradicted;  why  may    not    the  other?     An 

^  See  Merle  v.  Mathewa,  26  Cal.  455. 


§  830  CONSIDERATION.  1104 

nttontiou  to  the  principles  upon  which  parol  testimony 
is  jidmissible  to  explain  or  avoid  the  effect  or  the 
apparent  import  of  a  writing,  may  reconcile  many,  if 
not  all,  of  the  authorities  which  seem  to  be  in  conflict. 
One  of  these  principles  is,  that  in  certain  classes  of 
cases,  the  statute  of  frauds  and  perjuries  requires 
writing  to  vest  rights;  it  would  be  subversive  of  the  pol- 
icy of  the  statute  to  allow  parol  testimony  to  change  the 
legal  import  of  the  written  evidence  of  a  right  adopted 
to  certify  it,  therefor,  in  all  such  cases,  no  inferior  grade 
of  testimony  shall  be  admitted  to  supply  or  control  the 
intrinsic  meaning  of  the  writing.  Another  principle,  and 
one  more  universal  than  the  former  in  its  application 
is  that  wherever  a  right  is  vested,  or  created,  or  extin- 
guished by  contract,  or  otherwise,  and  writing  is  employed 
for  that  purpose,  parol  testimony  is  inadmissible  to  alter  or 
contradict  the  legal  and  common-sense  construction  of  the 
instrument.  But  that  any  writing,  which  neither  by  con- 
tract, the  operation  of  law,  nor  otherwise,  vests  or  passes 
or  extinguishes  any  right,  but  is  only  used  as  evidence  of 
Si  fact,  and  not  as  evidence  of  a  contract  or  right,  may  be 
susceptible  of  explanation  by  extrinsic  circumstances  or 
facts.  Thus,  a  will,  a  deed,  or  a  covenant  in  writing,  so 
far  as  they  transfer,  or  are  intended  to  be  evidence  of 
rights,  cannot  be  contradicted  or  opposed,  in  their  legal 
construction,  by  facts  aliunde.  But  receipts  and  other 
writings  which  only  acknowledge  the  existence  of  a  sim- 
ple fact,  such  as  the  payment  of  money  for  example,  may 
be  susceptible  of  explanation,  and  liable  to  contradiction 
by  witnesses.  A  party  is  estopped  by  his  deed.  He  is 
not  to  be  permitted  to  contradict  it;  so  far  as  the  deed  is 
intended  to  pass  a  right,  or  to  be  the  exclusive  evidence 
of  a  contract,  it  concludes  the  parties  to  it.  But  the  prin- 
ciple goes  no  further.  A  deed  is  not  conclusive  evidence 
of  everything  which  it  may  contain.  For  instance,  it  is 
not  the  only  evidence  of  the  date  of  its  execution;  nor  is 
its  omission  of  a  consideration  conclusive  evidence  that 
none  passed;  nor  is  its  acknowledgment  of  a  particular 


1105  CONSIDERATION.  *  §  830 

consideration  an  objection  to  other  proof  of  other  and 
consistent  considerations.  And  by  analogy,  the  acknowl- 
edgment in  a  deed,  that  the  consideration  had  been  re- 
ceived, is  not  conclusive  of  the  fact.  This  is  but  a  fact. 
And  testing  it  by  the  rationality  of  the  rule  which  we 
have  laid  down,  it  may  be  explained  or  contradicted.  It 
does  not  necessarily  and  undeniably  prove  the  fact.  It 
creates  no  right.  It  extinguishes  none.  A  release  can- 
not be  contradicted  or  explained  by  parol,  because 
it  extinguishes  a  pre-existing  debt.  But  no  receipt 
can  have  the  effect  of  destroying,  per  se,  any  subsist- 
ing right.  It  is  only  evidence  of  a  fact.  The  payment 
of  the  money  discharges  or  extinguishes  the  debt;  a 
receipt  for  the  payment  does  not  pay  the  debt,  it  is 
only  evidence  that  it  has  been  paid.  Not  so  of  a  written 
release.  It  is  not  only  evidence  of  the  extinguish- 
ment, but  is  the  extinguisher  itself.  The  acknowledg- 
ment of  the  payment  of  the  consideration  in  a  deed  is  a 
fact  not  essential  to  the  conveyance.  It  is  immaterial 
whether  the  price  of  the  land  was  paid  or  not;  and  the 
admission  of  its  payment  in  the  deed  is  generally  merely 
formal.  But  if  it  be  inserted  for  the  purpose  of  attest- 
ing the  fact  of  payment  (as  it  seldom,  if  ever,  is  in  this 
country),  it  is  not  better  evidence  than  a  sealed  receipt 
on  a  separate  paper  would  be;  and,  as  we  have  already 
said,  it  seems  to  us  that  it  would  not  be  as  good,  for 
obvious  reasons.  The  practice  of  inserting  such  acknowl- 
edgments in  deeds  is  very  common,  whether  the  consid- 
eration had  been  paid  or  not.     'For  and  in  consideration 

of  .$ ,  in  hand  paid,' etc.,  is  a  commonplace  phrase, 

which  may  be  found  in  deeds  generally.  And  it  is  sel- 
dom intended  as  evidence  of  payment,  or  for  any  other 
practical  purpose,  except  to  show  the  amount  of  consider- 
ation. To  establish  the  conclusiveness  of  such  loose  ex- 
pressions, therefore,  might  produce  extensive  injustice. 
If  a  note  had  been  given  for  the  consideration,  and  after- 
ward without  payment  a  deed  be  executed  for  the  land, 
with   the  commonplace  phraseology   in    relation    to    the 

LtELDs,  Vol.  II.—  70 


§§  Sol,  832  CONSIDERATION.  1106 

price,  Mould  tliis  be  conclusive   evidence  that  the  notes 
luid  been  paid  off  and  discharged?     Surely  not."^ 

§  8:51.  Parol  agreement  to  execute  devise. — An  owner 
of  land  convej'^ed  it  to  another,  the  deed  expressing  a  con- 
sideration in  money,  and  acknowledging  the  receipt  of 
the  consideration.  The  true  consideration,  however,  was 
the  parol  agreement  of  a  third  party  to  devise  to  the 
grantor  a  certain  farm,  and  such  third  person  executed 
his  will  at  the  same  time,  making  in  it  such  a  devise. 
The  grantor  having  entered  upon  the  land  and  cut  timber, 
the  court  held  in  an  action  of  trespass  quare  clausum  f regit 
against  the  grantor,  that  the  deed  was  made  upon  good 
consideration,  and  that  it  was  unnecessary  to  examine 
into  the  cases  in  which  parol  evidence  is  admitted  or  re- 
jected for  the  purpose  of  contradicting  the  consideration. 
"  The  principle,"  said  the  court,  "  which  seems  to  govern 
this  case,  is  that  where  a  vendor,  without  fraud  or  mis- 
take, accepts  of  the  engagement  of  a  third  person  for  the 
consideration  agreed  on,  and  on  the  faith  of  such  engage- 
ment acknowledges  the  receipt  of  the  consideration,  it  is 
against  equity  that  he  should  be  permitted  to  defeat  the 
operation  of  the  grant  by  showing  that  the  consideration 
was  not  paid.  As  between  vendor  and  vendee  the  con- 
sideration is  to  be  treated  as  fully  paid,  and  the  vendor  is 
estopped  from  denying  it."  ^ 

§  832.  Community  property. — In  some  of  the  States 
the  rules  of  the  common  law  relative  to  property  held  by 
husband  and  wife  have  been  changed,  and  a  distinction  is 
made  between  separate  property  and  community  property. 
Separate  property  is  such  as  is  acquired  before  marriage, 
or  acquired  afterward  by  gift,  bequest,  devise,  or  descent, 
with  the  rents,  issues,  and  profits  thereof.  All  other 
property  acquired  after  marriage  by  either  husband 
or  wife,  or  both,  is  declared  to  be  community  prop- 
erty.    But   it   is    presumed    that   all    property    acquired 

^  Gully  V.  Grubbs,  1  INTarsh.  J.  J.  387,  389. 
^  McMuUin  v.  Glass,  27  Pa.  St.  151. 


M 


1107  CONSIDERATION.  §   832 

after  marriage  is  community  property,  and  the  party 
claiming  it  to  be  separate  property  has  the  burden  of  es- 
tablishing this  fact/  But  as  a  part}'-  has  the  riglit  to  re- 
but this  presumption,  the  deed,  so  far  as  it  recites  the 
payment  of  a  consideration  by  a  particular  person,  or 
from  particular  friends,  may  be  contradicted;^  and  this 
may  be  done  by  parol  evidence.^  It  may  be  shown  by 
such  evidence,  where  it  is  recited  in  a  deed  from  a 
mother  to  her  married  daughter,  that  it  was  made  in 
consideration  of  love  and  natural  affection,  as  well  as  for 
a  sum  of  money,  that  no  money  consideration  existed* 
and  that  the  deed  was  one  of  gift,  having  thus  the  effect 
of  making  the  land  so  conveyed  the  separate  property  of 
the  daughter  instead  of  the  common  property  of  herself 
and  husband.*  But  where  the  wife  is  dead  and  the  record 
shows  that  the  title  is  vested  in  the  husband  alone,  a  pur- 

^  Moore  v.  Jones,  63  Cal.  12;  Kohnerr.  Aslienauer,  17  Oal.  581 ;  Adams 
V.  Knowlton,  22  Oal.  288;  Peck  v.  Vandenberg,  30  Cal.  11;  Alverson  v. 
Jones,  10  Cal.  9;  70  Am.  Dec.  689;  Tryon  v.  Sutton,  13  Cal.  493;  Eams- 
dell  V.  Fuller,  28  Cal.  42;  87  Am.  Dec.  103;  McDonald  v.  Badger,  23  Oal. 
399;  83  Am.  Dec.  123;  Mott  v.  Smith,  16  Cal.  557;  Bernal  v.  Gleim,  33 
Cal.  668;  Smith  v.  Smith,  12  Cal.  224;  73  Am,  Dec.  533;  Meyer  v.  Kin- 
zer,  12  Cal.  252;  73  Am.  Dec.  538;  Tustin  v.  Faught,  23  Cal.  241 ;  Althof 
f.  Conheim,  38  Cal.  233;  99  Am.  Dec.  363;  Burton  v.  Lies,  21  Cal.  91; 
Pixley  V.  Huggins,  15  Cal.  131;  Riley  v.  Pehl,  23  Cal.  70;  Landers  v. 
Bolton,  26  Cal.  420;  Schuler  v.  Savings  etc.  Soc,  1  West  Coast  Hep.  125; 
Browder  v.  Clemens,  61  Tex.  587 ;  Rice  v.  Rice,  21  Tex.  66 ;  Pearce  v. 
Jackson,  61  Tex.  644;  Zorn  v.  Traver,  45  Tex.  520;  Lott  v.  Keach,  5  Tex. 
394 ;  Brackett  v.  Devine,  25  Tex.  194 ;  Cox  v.  Miller,  54  Tex.  25 ;  Wood 
V.  Wheeler,  7  Tex.  20;  Cooke  v.  Bremond,  27  Tex.  459;  86  Am.  Dec.  626; 
Schmeltz  v.  Garey,  49  Tex.  49;  Huston  v.  Curl,  8  Tex.  239;  58  Am.  Dec. 
110;  Mitchell  v.  Marr,  26  Tex.  329;  De  Blane  v.  Lynch,  23  Tex.  25;  Love 
V.  Robertson,  7  Tex.  6;  56  Am.  Dec.  41;  Chapman  v.  Allen,  15  Tex.  278. 

»  Moore  v.  Jones,  63  Cal.  12. 

'  Peck  V.  Brummagim,  31  Cal.  440;  89  Am.  Dec.  195,  and  cases  cited 
above. 

*  Peck  V.  Vandenberg,  30  Cal.  11.  Commencing  on  page  22  will  be 
found  a  valuable  and  exhaustive  review  by  Judge  Sawyer  of  the  cases 
b  aring  upon  this  subject.  The  learned  justice  reviews  first  the  common- 
law  autborities  on  the  question  of  the  extent  to  which  the  consideration 
expressed  in  a  deed  may  be  explained  or  contradicted,  and  then  adverts 
to  the  cases  in  wliich  evidence  has  been  admitted  to  show  that  a  convey- 
ance made  after  marriage  was  separate  property.  See  Higgins  v.  John- 
Bon,  2U  Tex.  393;  70  Am.  Dec.  394;  Gonor  v.  Gonor,  11  Rob.  (La.)  526; 


§§  833,  834  CONSIDERATION.  1108 

cliascr  for  value  of  the  land  is  not  chargeable  with  notice 
that  the  land  was  in  fact  community  property,  where 
there  is  nothing  to  affect  him  with  notice.^ 

§  833.     In  North  Carolina  acknowledg-ment  is  release. 

In  North  Carolina,  the  rule  seems  to  be  that  the  acknowl- 
edgment in  a  deed  that  the  consideration  has  been  paid 
is,  in  an  action  to  recover  the  purchase  money,  a  release, 
and  is  a  bar  to  the  action.  And  in  one  of  the  cases  in 
which  this  is  held,  the  court  remark  that  the  effect  of  ad- 
hering to  this  rule,  "  will  only  be  to  make  men  cautious 
in  executing  deeds;  but  if  it  be  understood  that  a  solemn 
acknowledgment  under  seal  is  insufficient  to  prove  the 
payment  of  money,  it  is  to  be  apprehended  that  many 
perjuries  will  arise." ^ 

§  834.  Showing  absence  of  consideration  to  defeat 
deed. — As  has  been  shown,  the  courts  allow  the  greatest 
latitude  of  inquiry  as  to  what  consideration  really  passed 
between  the  parties,  and  the  grantor  is  not  estopped  by 
his  acknowledgment  of  payment  in  any  action  which  he 
may  bring  for  the  recovery  of  the  purchase  money  or 
other  object,  so  long  as  the  validity  of  the  deed  as  an 
operative  conveyance  is  not  attacked.  But  the  rule  which 
we  have  been  considering  is  subject  to  the  important 
qualification  that  parol  evidence  cannot  be  admitted  for 
the  purpose  of  destroying  the  effect  and  operation  of  the 
deed.^     From  this  rule,  it  follows  that  the  grantor  cannot 

Claiborne  v.  Tanner,  18  Tex.  70;  Huston  v.  Curl,  8  Tex.  240;  58  Am. 
Dec.  110;  Eose  v.  Houston,  11  Tex.  326;  62  Am.  Dec.  478;  Mclntyre  v. 
Chappell,  4  Tex.  187;  Love  v.  Robertson,  7  Tex.  8;  56  Am.  Dec.  41. 

'  Woodward  v.  Suggett,  59  Tex.  619.  And  see  Morris  v.  Meek,  57  Tex. 
385. 

'  Brockett  v.  Foscue,  1  Hawks  (L.  &  Eq.),  64,  67;  Lowe  v.  "Weather 
ley,  4  Dev.  &  B.  212;  Mendenhall  v.  Parish,  8  Jones  (N.  0.),  106;  78  Am. 
Dec.  269;  Graves  v.  Carter,  2  Hawks  (L.  &  Eq.),  576;  11  Am.  Dec.  786; 
Spiers  v.  Clay's  Administrator,  4  Hawks  (L.  &  Eq.),  22. 

»  Grout  V.  Townsend,  2  Hill,  554,  557;  Coles  v.  Soulsby,  21  Cal.  47; 
Wilkinson  v.  Scott,  17  Mass.  257;  McCrea  i;.  Purmort,  16  Wend.  460;  30 
Am.  Dec.  103;  Kinnebrew  v.  Kinnebrew,  35  Ala.  636;  Beach  v.  Cooke, 
28  N.  Y.  537;  86  Am.  Dec.  266;  Stackpole  v.  Bobbins,  47  Barb.  219;  Ar- 


1109  CONSIDERATION.  §   834 

claim  that  a  trust  results  to  himself  when  he  has  exe- 
cuted a  deed  without  consideration.  This  would  be  de- 
feating the  deed  by  parol  evidence,  which  cannot  be 
done.^  Creditors,  of  course,  can  show  that  a  deed  was 
made  without  consideration  for  the  purpose  of  defeat- 
ing it.^ 

thur  V.  Arthur,  10  Barb.  24;  Bullard  v.  Briggs,  7  Pick.  537;  19  Am.  Dec. 
292;  Goodspeed  v.  Fuller,  46  Me.  141;  71  Am.  Dec.  572;  Eockwell  v. 
Brown,  54  N.  Y.  213;  Peck  v.  Vandenberg,  30  Cal.  23.  See,  also,  Com- 
mercial Bank  etc.  v.  Norton,  1  Hill,  509 ;  Doe  v.  Beardsley,  2  McLean, 
412,  414 ;  Philbrook  v.  Delano,  29  Me.  410 ;  Goodwin  v.  Gilbert,  9  Mass. 
510;  Wilt  V.  Franklin,  1  Binn.  502;  2  Am.  Dec.  474;  Barnum  v.  Ohilds, 
1  Sand.  58,  62;  AVinans  v.  Peebles,  31  Barb.  371 ;  Farrington  v.  Barr,  36 
N.  H.  86;  Graves  v.  Graves,  29  N.  H.  129;  3  Wash.  Real  Prop.  (4th  ed.), 
377. 

*  Burn  V.  Winthrop,  1  Johns.  Oh.  329;  Burt  v.  Wilson,  28  Cal.  632; 
Graves  v.  Graves,  29  N.  H.  129;  Ownes  v.  Ownes,  23  N.  J.  Eq.  60;  Jack- 
son V.  Cleveland,  15  Mich.  94;  90  Am.  Dec.  266;  Graff  v.  Rohrer,  35  Md. 
327;  Hutchins  v.  Lee,  1  Atk.  447;  Lloyd  v.  Spillett,  2  Atk.  250;  Young 
V.  Peachy,  2  Atk.  257.  And  see  Morris  v.  Morris,  2  Bibb,  311 ;  Randall 
V.  Phillips,  3  Mason,  388 ;  McKenney  v.  Burns,  31  Ga.  295. 

*  Peck  V.  Vandenberg,  30  Cal.  22 ;  Johnson  v.  Taylor,  4  Dev.  355.  And 
see  Hubbard  v.  Allen,  59  Ala.  296 ;  Fellows  v.  Smith,  40  Mich.  689.  See 
where  the  recital  of  a  consideration  in  a  deed  from  a  corporation  showed 
that  the  act  was  not  authorized  by  the  charter :  Franco-Texan  Land  Co. 
V.  McCormick,  85  Tex.  416;  34  Am.  St.  Rep.  815.  See,  also,  §§  710,  ante, 
and  1000,  post. 


I 


CHAPTER  XXV. 

PRINCIPLES  OF  CONSTiiUOTION. 
PART  I. 

GENBBAL    PBINCIPLES. 

§  S35.    Prefatory  section. 

§  836.    Intention  of  parties. 

§  836  a.  Unusual  form  of  deed. 

§  837.    Tecbnical  terms. 

§  838.    Expression  of  grantor's  motive. 

§  838  a.  Expressions  limiting  title  conveyed. 

§  838  b.  Subsequent  clauses  neither  enlarging  nor  limiting  grant. 

§  838  e.  Further  consideration— Execution  sales. 

§  839.    Surrounding  circumstances. 

§  S40.    This  is  but  one  rule. 

§  841.    Appearance  at  time  of  sale. 

§  842.    Illustrations. 

§  843.    Grammatical  construction. 

§  844.    Resort  to  punctuation. 

§  845.    Construing  deeds  together. 

§  846.    Rule  in  Shelley's  case. 

§  847.     Lawful  issue. 

§  848.    Construction  against  grantor. 

§  849.    Divers  estates. 

§  849  a.  Deed  of  executor  passing  individual  interest. 

§  850.    Construction  favorable  to  operation  of  deed. 

§  85(1  a.  ^iorger  of  contract  to  convey  in  deed. 

§  850b.  Stipulation  surviving  deed. 

§  850c.  Deed  correcting  prior  deed. 

§  851.    Contemporaneous  exposition. 

§  852.    Election  of  grantee. 

§  853.    Passing  present  interest  with  other  provisions  to  take  effect 
upon  death  of  grantor. 

§  854.    No  present  interest  passing. 

§  855.    Tendency  to  uphold  deed. 

§  855  a.  Deed  or  -VNiill. 

§  8r>r)  b.  Same  subject— Further  illustrations. 
§  85o  c.  When  a  will. 

§  856.    Conveyance  of  estate  not  owned  by  grantor. 

(iiio; 


1111  PRINCIPLES    OF    CONSTRUCTION.  §  835 

§  S57.  Conveyance  in  fee  with  condition  upon  a  right  of  possession 

in  the  grantors. 

§  858.  Limited  estates. 

§  859.  Same  subject— Continued. 

§  860.  Conveyance  to  wife  and  children. 

§  861.  Relation  from  re-execution  of  lost  deed. 

§  862.  Water  power. 

§  863.  Appurtenances  and  incidents. 

§  864.  Construction  of  particular  words. 


PART  II. 

COMMUNITY   PEOPEfiTr. 

§  865.  In  what  States  exists. 

§  866.  The  civil  law. 

§  867.  In  other  countries. 

§  868.  Presumption  of  community  property. 

§  869.  Grants  from  the  government — Rule  in  Texas. 

§  870.  In  California  and  Louisiana. 

§  871.  Land  purchased  by  eoji'nings  of  wife. 

§  871!.  Gift  to  husband  or  wife. 
§  S72a.  Subsequently  acquired  title  passes. 

§  873.  Voluntary  gift  in  fraud  of  wife. 

§  874.  Title  acquired  after  voluntary  separation. 

§  875.  Gift  in  compensation  for  sei-vices. 

§  876.  Rebuttal  of  presumption  of  community  property. 

§  877.  Fresumptioii  when  deed  is  made  to  wife. 

§  878.  The  rule  in  Texas. 

§  S7'.).  Purchase  on  credit. 

§  880.  Tortious  possession  and  deed  in  consideration  of  surrender 
thereof, 

§  835.  Prefatory  section. — It  is  not  intended  in  this 
chapter  to  enter  into  a  detailed  examination  of  the  num- 
ber of  cases  decided  on  the  import  of  particular  language 
found  in  the  deed.  There  are,  however,  a  few  well-estab- 
lisliod  rules  of  construction  which  are  resorted  to  by  courts 
in  the  construction  of  deeds.  But  it  is  doubtful  how  far 
arbitrary  rules  can  be  of  service  where  the  only  object  is 
to  determine  the  intention  of  the  parties.  In  fact,  the 
truth  was  well  expressed  by  Mr,  Justice  Sanderson,  who 
said  that  "iii  the  construction  of  written  instruments,  we 
have  never  derived  much  aid  from  the  technical  rules  of 
the  books.     The  only  rule  of  much  value — one  which  is 


^  SoG  PRINCIPLES    OF    CONSTRUCTION.  1112 

frequently  sliadowed  forth,  but  seldom,  if  ever,  expressly 
stated  in  the  books— is  to  place  ourselves  as  near  as  pos- 
sible in  the  seats  which  were  occupied  by  the  parties  at 
the  time  the  instrument  was  executed;  then,  taking  it  by 
its  four  corners,  read  it."^  This  is  the  main  object  of  all 
construction.  When  the  intention  of  the  parties  can  be 
ascertained,  nothing  remains  but  to  effectuate  that  inten- 
tion. In  this  chapter  are  given  some  of  the  general  rules 
of  construction,  while  in  other  chapters  will  be  found  sec- 
tions relating  to  the  construction  of  language  used  in  those 
clauses  which  form  the  different  parts  of  a  deed. 

§  836.  Intention  of  parties. — As  in  the  case  of  all 
contracts,  the  intent  of  the  parties  to  the  deed,  when  it  can 
be  obtained  from  the  instrument,  will  prevail,  unless  coun- 
teracted by  some  rule  of  law.^  A  deed  conveyed  a  certain 
gore  or  strip  of  fiats  described  in  the  deed,  and  continued: 
"The  said  strip  or  gore  to  begin  at  the  lower  end  of  Milk 
Wharf,  so  called,  and  to  run  four  hundred  and  eighty 
feet  to  the  channel.  And  the  said  grantors,  for  the  con- 
sideration aforesaid,  hereby  release  to  the  said  grantee, 
or  to  any  other  person  or  persons  that  may  build  any 
wharf  on  the  western  line  of  said  strip  of  fiats  and  in  the 
continuation  of  the  said  new  wharf  and  on  the  line  thereof 
to  the  eastward,  all  our  right,  title,  and  interest  to  the 
said  gore  of  flats  to  the  channel,  or  so  far  as  our  right 
extends,  for  the  use  and  benefit  of  the  proprietors  of  the 
wharf  which  may  be  built  as  aforesaid.     To  have  and  to 

1  In  Walsh  v.  Hill,  38  Cat.  481,  487. 

«  Brannan  v.  Mesick,  10  Oal.  95 ;  Thomas  v.  Hatch,  3  Sum.  170;  Bent 
V.  Rogers,  137  Mass.  192;  Br5'an  v.  Bradley,  16  Conn.  474;  Litchtield  v. 
Cudworth,  15  Pick.  23;  Racouillat  v.  Sansevain,  32  Cal.  376;  Frost  v. 
S{.auldin<r,  19  Pick.  445;  31  Am.  Dec.  150;  Deering  ■;;.  Long  Wiiarf,  25 
Me.  51 ;  Wallis  v.  Wallis,  4  Mass.  135 ;  3  Am.  Dec.  210 ;  Marshall  v.  Fisk, 
6  Mass.  24;  4  Am.  Dec.  76;  Barnes  v.  Haybarger,  8  Jones  (N.  0.),  76; 
Jennings  v.  Brizeadine,  44  Mo.  332;  Jackson  v,  Blodgett,  16  Johns.  172; 
Mills  V.  Cattin,  22  Vt.  98 ;  Waterman  v.  Andrews,  14  R.  I.  589 ;  Cumber- 
land Building  and  Loan  Assn.  v.  Aramingo  Episcopal  Church,  13  Phila. 
171;  Pike  v.  Monroe,  36  Me.  .309;  58  Am.  Dec.  751;  Jackson  v.  Myers,  3 
Johns.  388 ;  3  Am.  Dec.  504 ;  Callis  v.  Lavelle,  44  Vt.  230 ;  Smith  v.  Brown, 
66  Tex.  543. 


1113  PIUNCIPLES    OF    CONSTRUCTION.  §  836 

hold  the  said  granted  and  bargained  premises,  with  the 
privileges  and  appurtenances  thereof,  to  the  said  grantee, 
his  heirs  and  assigns,  to  his  and  their  use  and  behoof  for- 
ever." The  deed  also  contained  the  usual  covenants  of 
warranty,  and  it  was  held  that  by  the  first  description 
the  grantee  took  an  absolute  estate  in  fee  of  the  prop- 
erty described,  and  that  by  the  second  description,  all 
the  right,  title,  and  interest  of  the  grantors  to  the  prop- 
erty described  passed  to  the  grantee,  and  not  "to  the 
use  and  benefit  of  the  wharf  which  might  be  built."'  If 
a  question  of  law  arises  upon  the  construction  of  a  deed, 
it  is  the  province  of  the  court  to  construe  it  and  to  de- 
cide from  the  language  what  the  intention  of  the  parties 
was.^  When  the  intention  of  the  parties  can  be  plainly 
ascertained,  arbitrary  rules  are  not  to  be  resorted  to.^ 
The  rule  is  that  the  intention  of  the  parties  is  to  be  ascer- 
tained by  considering  all  the  provisions  of  the  deed,  as  well 
as  the  situation  of  the  parties,  and  then  to  give  effect  to 
such  intention  if  practicable,  when  not  contrary  to  law.* 
A  party  executed  to  four  others  an  instrument,  which, 
beginning  in   the  ordinary    form  of  a  bargain  and  sale 

^  Deering  v.  Long  Wharf,  25  Me.  51. 

«  Mulford  V.  Le  Franc,  26  Cal.  88.  See,  also.  Bell  v.  Woodward,  46 
N.  H.  337 ;  Thornberry  v.  Churchill,  4  Mon.  29 ;  16  Am.  Dec.  125 ;  Hurley 
V.  Morgan,  1  Dev.  &  B.  425  j  28  Am.  Dec.  579. 

*  Kimball  v.  Semple,  25  Cal.  449 ;  Prentice  v.  Duluth  Storage  and  For- 
^  warding  Co. ,  58  Fed.  Rep.  437 ;  Free  and  Accepted  Masons  v.  School  Town 

of  Newpoint,  138  Ind.  141;  United  States  v.  Cameron,  21  Pac.  Eep.  177 
(Ariz.,  Apr.  6,  1889). 

*  Pike  V.  Monroe,  36  Me.  309;  58  Am.  Dec.  751 ;  Means  v.  Presbyte- 
rian Church,   3  Watts  &  S.  303;  Moore  v.  GrKIin,  22  Me.  350;  Mills  v. 
Catlin,  22  Vt.  98;  Benedict  t;.  Gaylord,  11  Conn.  332;  29  Am.  Doc.  299; 
Chouteau  t;.  Suydara,  21  N.  Y.  170;  Wolfe  v.  Scarborough,   2  Ohio  St. 
361.     See   Churchill  v.  Reamer,  8  Bush,   256;  Clutev.  New  York  Cent, 
etc.  R.  R.Co.,  120  N.  Y.  267;  Bartholomew  v.  Muzzy,  61  Conn.  387;  29 
Am.  St.  Rep.  206.     The  effort  should  be  so  to  construe  the  deed  as  seems 
most  likely  to  effectuate  the  intention  of  the  parties :  Melick  v.  Pidcock, 
44  N.  J.  Eq.  525;  6  Am.    St.  Re]).  901;  Post  v.  Weil,  115  N.  Y.  361;  12 
Am.  St.  Rep.  809;  Berridge  r.  Glassey,  112  Pa.  St.  442;  56  Am.  Rep.  324; 
Eiselyv.  Spooner,  23  Neb.  470;  8  Am.  St.  Rep.  128;  Bradley  v.  Zehmer, 
82  Va.  685;  Lowdermilk  v.  Bostick,  98  N.  C.  299.     But  a  deed  can  con- 
vey nothing  except  what  it  describes,  whatever  may  have  been  the  in- 
tention of  the  parties :  Thayer  v.  Finton,  108  N.  Y.  394. 


§  S3G  PRINCIPLES    OF    CONSTRUCTION.  1114 

deed,  purported  to  convey  to  tliem,  for  a  certain  consid- 
eratii)ii,  the  property  described,  with  a  general  warranty 
of  title.  Then  followed  a  power  of  attorney  giving  au- 
thority to  the  grantees  to  take  possession  of  the  property, 
and  to  sell  and  convey,  or  lease  the  same  in  the  name  of 
the  grantor,  and  to  receive  the  purchase  money  and  rents. 
The  grantor  also  agreed  not  to  sell,  lease,  or  authorize  any 
other  person  to  sell  or  lease  the  property,  or  revoke  the 
power  of  attorney,  unless  default  was  made  in  the  pay- 
ment of  tlie  consideration  in  the  installments  mentioned 
in  the  deed.  The  deed  contained  a  covenant  that  if  the 
amount  was  paid  at  the  time  agreed  upon,  the  instru- 
ment should  take  effect  as  a  full  conveyance  in  fee  of  the 
land,  and  also  a  covenant,  in  case  of  the  grantor's 
failure  to  fulfill  his  covenants,  the  instrument  should  take 
effect  as  a  conveyance.  The  instrument  was  held  to  be 
a  conveyance  upon  a  condition  precedent,  until  the  per- 
formance of  which  no  title  passed  to  the  grantees.  On 
performance  of  the  condition  the  title  would  vest  in  the 
grantees  without  any  further  act  on  the  grantor's  part, 
but  until  that  time  the  title  remained  in  the  grantor.^ 
In  a  deed  the  grantor  conveyed  "all  his  right,  title,  in- 
terest, and  estate  in  and  to  all  the  estate,  real,  personal, 
or  mixed,  which  J.  C.  and  J.  C,  junior,  died,  seised  or  pos- 
sessed of."  It  was  held  that  the  word  "  and  "  did  not  mean 
the  joint  estate  alone,  but  that  the  deed  conveyed  the  in- 
terest of  the  grantor  in  all  the  estate,  whether  joint  or 
several.^  "It  was  the  manifest  intent  of  the  parties,  that 
the  grantor's  right  in  all  the  estate,  whether  joint  or 
several,  should  pass.  And  such  must  be  the  operation 
of  the  deed.  It  is  not  uncommon  to  construe  and  to 
mean  or,  and  or  to  mean  and,  when  necessary  to  carry 
into  effect  the  intention  of  the  parties."^  A  deed 
conveyed  to  the  grantee,  *'and  her  heirs  and  assigns  for- 

^  Brannan  v.  Mesick,  10  Cal.  95. 

*  Litchfield  v.  Cudworth,  15  Pick.  23. 

^  Litclifiold  V.  Cudwortli,  supra.  Subsequent  acts  of  the  parties  may 
be  considered  in  construinij  an  ambiguous  deed:  AYilson  v.  Carrico,  140 
Ind.  533;  49  Am.  !St.  Kep.213. 


1115  PKINCirLES    OF    COXSTRUCTION.  §  836 

ever,  a  certain  piece  or  parcel  of  land  situated,  lying,  and 
being  in  Halifax,  and  is  the  same  farm  on  which  [the 
grantor]  now  lives;  that  is  to  say,  one  undivided  half  of 
the  same,  with  the  buildings  thereon,  with  the  privileges 
and  appurtenances  thereto  belonging,  ....  always  pro- 
vided that  in  the  event  of  her  decease,  the  same  shall  re- 
vert to  me,  if  living,  if  not,  to  my  heirs,  being  the  same 
farm  which  I  purchased  of  Darius  Plumb."  The  liahen- 
dum  was  to  the  grantee,  "and  her  heirs  and  assigns,  to  her 
and  their  own  proper  use,  benefit,  and  behoof  forever." 
The  deed  contained  the  usual  covenants  of  warranty, 
seisin,  and  against  encumbrances,  and  also  this  clause 
following  the  covenants:  "Always  reserving  the  rever- 
sion to  myself  and  heirs,  as  stipulated  in  the  deed."  The 
court  held  tliat  the  manifest  intent  was  to  convey  an  es- 
tate for  life  and  not  an  estate  in  fee,  and  the  deed  must 
take  effect    according  to  such  intent.^ 

'  Flagg  i;.  Eames,  40  Yt.  16;  94  Am.  Dec.  363.  And  see,  also,  Col- 
lins V.  Lavelle,  44  Vt.  230;  Colby  v.  Colby,  28  Vt.  10.  No  peculiar  form 
of  words  is  necessary  to  make  a  deed  operative.  Any  words  showing  an 
intention  to  convey  will  be  sufficient:  Baker  t;.  Westcott,  73  Tex.  129; 
Jennings  v.  Brezeadine,  44  Mo.  335 ;  American  Emigrant  Co.  v.  Clark,  62 
Iowa,  182.  An  instrument  in  the  following  form  will  convey  the  title  to 
real  estate:  "Know  all  men  by  these  presents,  that  I,  John  Martin,  of 
the  city  of  Philadelphia,  mariner,  in  consideration  of  the  sum  of  one 
thousand  dollars,  to  me  paid  by  Elizabeth  Martin,  gentlewoman,  the  re- 
ceipt whereof  is  hereby  acknowledged,  as  also  for  divers  other  good  and 
valualjle  considerations,  have  granted,  bargained,  sold,  conveyed,  and 
assigned,  and  by  these  presents  do  grant,  bargain,  sell,  convey,  and  as- 
sign all  debts,  dues,  or  demands  wheresoever  and  whatsoever,  real,  per- 
sonal, or  mixed,  which  are  due  and  owing,  or  of  right,  belonging  unto  me, 
either  by  virtue  of  inheritance,  legacies,  bonds,  notes,  book  debts,  or 
otherwise,  or  which  hereafter  may  become  due.  The  said  Elizabeth 
Martin  to  have  and  to  hold  the  same  unto  her,  the  said  Elizabeth,  her 
heirs  and  assigns  forever":  McWilliams  v.  ]\Iartin,  12  S.  &  R.  2()9;  14 
Am.  Dec.  688.  And  see  Harper  v.  Blean,  3  Watts,  475;  27  Am.  Dw. 
367;  Dice  v.  Sheffer,  3  W.  &  S.  419;  Stone's  iVpi.eai.  2  Pa.  St.  432. 
Where  the  grantee  duly  signed  and  acknowledged  an  indorsement  on  a 
deed  in  thene  words:  "I  assign  the  within  for  value  received,"  it  is  held 
that  the  title  to  the  land  described  in  the  deed  will  pass  to  the  assignee: 
Harlowe  v.  Hudgins,  84  Tex.  107;  31  Am.  St.  Rep.  21.  See,  also,  Lemon 
V.  Graham,  131  Pa.  St.  447.  But  it  is  lield  in  Lessee  of  Bentley's  Heirs 
V.  De  Forest,  2  Ohio,  221,  15  Am.  Dec.  546,  that  an  indorsement  on  a  deed 
assigning  it  does  not  convey  an  interest  in  the  land  described,  and  at  best 


^§  8oC)  a,  837     ruiNCirLES  op  constkuction.  1116 

^  «;><>  a.  Umisiial  form  of  deed. — Altliougli  the  form 
of  a  ileed  may  be  unusual,  the  intention  of  the  grantor, 
when  it  appears,  must  be  given  effect,  and  tlie  deed  will 
not  be  declared  void  unless  the  various  clauses  are  so  re- 
pugnant as  to  leave  no  other  course  to  be  followed.'  If  a 
husband  executes  a  deed  to  his  wife  containing  a  stipula- 
tion that  when  she  shall  cease  to  live  with  him  as  his 
wife  the  title  shall  revert  to  him,  the  title  will  not  revert 
on  the  wife's  commission  of  adultery.^  If  the  only  reason 
urged  for  construing  a  particular  clause  in  a  deed  is 
founded  upon  the  technical  words  which  have  been  used, 
the  court  may  disregard  them  in  determining  the  effect 
to  be  given  to  the  conveyance,  and  such  a  construction 
should  be  adopted  as  on  a  general  view  of  the  instrument, 
and  of  the  intention  which  the  parties  had  in  view,  seems 
most  likely  to  carry  their  intention  into  effect.* 

§  837.  Technical  terms. — "The  intent,  when  appar- 
ent and  not  repugnant  to  any  rule  of  law,  will  control 
technical  terms,  for  the  intent,  and  not  the  words,  is  the 
essence  of  every  agreement.  In  the  exposition  of  deeds, 
the  construction  must  be  upon  the  view  and  comparison 
of  the  whole  instrument,  and  with  an  endeavor  to  give 
every  part  of  it  meaning  and  effect."  *  And  if  a  deed  can- 
not take  effect  in  the  precise  way  intended,  yet  if  it  can 
operate  in  another  mode  it  will  be  so  construed."     If  there 

can  be  considered  only  an  executory  contract.  See,  also,  Doe  ex  dem. 
Linker  v.  Long,  64  N.  0.  296;  Arms  v.  Burt,  1  Vt.  303;  18  Am.  Dec.  680; 
Tunstall  v.  Long,  109  N.  C.  316.  But  the  deed  must  contain  words  o^ 
Borne  kind  indicating  an  intent  to  convey :  Webb  v.  Mullins,  78  Ala.  Ill ; 
Hummelnian  r.  Mounts,  87  Ind.  178;  Brown  v.  Manter,  21  N.  H.  528;  53 
Am.  Dec- 223;  Sharp  v.  Bailey,  14  Iowa,  387;  81  Am.  Dec.  489;  Davis  v. 
Davis,  43  Ind.  561. 

^  Cravens  v.  White,  73  Tex.  577;  15  Am.  St.  Rep.  803. 

'  Bayor  v.  Rayor,  142  111.  375;  31  N.  E.  Rep.  678. 

'  Post  V.  Weil,  115  N.  Y.  361 ;  12  Am.  St.  Rep.  809. 

*  Chief  Justice  Kent,  in  Jackson  v.  Myers,  3  Johns.  388,  395;  3  Am. 
Dec.  504;  Prentice  v.  Duluth  Storage  and  Forwarding  Co.,  68  Fed. 
Rep.  437. 

'  Parker  v.  Nichols,  7  Pick.  Ill;  Goodtitle  v.  Bailey,  Cowp.  600;  Bar- 
rett V.  French,  1  Conn.  354;  6  Am.  Dec.  241;  Lynch  v.  Livingston,  8 


1117  PRINCIPLES    OF    CONSTRUCTION.  §  837 

is  a  conflict  in  a  deed  between  what  is  written  and  what 
is  printed,  the  written  part  prevails.*  Where  in  a  printed 
blank  form  of  a  warranty  deed,  the  printed  words  '•  for- 
ever, a  certain  piece  and  parcel  of  land  lying  and  being" 
are  stricken  out,  and  the  words  "  all  my  right,  title,  and 
interest  in  and  unto"  are  inserted  in  their  place,  followed 
by  a  description  of  the  land,  the  deed  containing  a  cove- 
nant, "that  until  the  ensealing  of  these  presents,  we  are 
the  sole  owners  of  the  premises,  and  that  they  are  free," 

Barb.  463;  2  Seld.  422;  Jackson  v.  Blodgett,  16  Johns.  172;  Doe  v.  Sal- 
keld,  Willes,  673;  Wallis  v.  Wallis,  4  Mass.  135;  3  Am.  Dec.  210;  Hag- 
gerston  v.  Hanbury,  5  Barn.  &.  G.  101;  Smith  v.  Frederick,  1  Russ.  174; 
Bryan  v.  Bradley,  16  Conn.  474 ;  Russell  v.  Coffin,  8  Pick.  143 ;  Brewer  v. 
Hardy,  22  Pick.  376;  33  Am.  Dec.  747;  Roe  v.  Tanmar,  Willes,  682; 
Walker  r.  Hall,  2  Lev.  213;  Thompson  v.  Attfield,  1  Vern.  40;  Thorne  v. 
Thorne,  1  Vern.  141;  Rogers  v.  Eagle  Fire  Ins.  Co.,  9  Wend.  611;  Doe  d. 
Lewis  V.  Davies,  2  Mees.  &  W.  503;  Doe  d.  Starling  v.  Prince,  20  L.J. 
N.  S.  C.  P.  223;  Doe  d.  Daniell  v.  Woodroffe,  10  Mees.  &  W.  608;  Colt- 
man  V.  Senhouse,  2  Lev.  225;  Crossing  v.  Scudamore,  2  Lev.  9;  1  Mod. 
175;  Harrison  v.  Austin,  Carth,  38;  Doe  d.  Were  v.  Cole,  7  Barn.  &  C. 
243;  Adams  v.  Steer,  Cro.  Jac.  210;  Rigden  v.  Vallier,  2  Ves.  Sr.  253; 
Haggerson  v.  Hanbury,  5  Barn.  &  C.  101 ;  Nash  v.  Ash,  1  Hurl.  &  0. 160. 
See,  also,  Winborne  v.  Downing,  105  N.  C.  20;  Lemon  v.  Graham,  131 
Pa.  St.  447;  Starnes  v.  Hill,  112  N.  C.  1 ;  Moore  v.  City  of  Waco,  85  Tex. 
206;  Carson  v.  Fuhs,  131  Pa.  St.  256;  Staffordville  Gravel  Co.  v.  Newell, 
53  N.  J.  L.  412;  19  Atl.  Rep.  209;  Greer  v.'Pate,  85  Ga.  552;  Behmyer  v. 
Odell,  31  111.  App.  350;  Huber  v.  Crosland,  140  Pa.  St.  575;  21  Atl.  Rep. 
404;  Campljell  v.  Morgan,  68  Hun,  490;  Field  v.  City  of  Providence,  17 
R.  L  803;  Smith  v.  Smith,  71  Mich.  633;  40  N.  W.  Rep.  21 ;  Ratliffe  v, 
Marrs,  87  Ky.  26;8  S.  ^Y.  Rep.  876;  White's  Trustee  v.  White,  86  Ky. 
602;  7  S.  W.  Rep.  26;  Wonn  v.  Pittman,  82  Ga.  637;  Brown  v.  Ferrell, 
83  Ky.  417 ;  Grieber  v.  Lindenmeier,  42  Minn.  99 ;  Anderson  v.  Logan, 
105  N.  C.  266. 

^  Cummings  v.  Dearborn,  56  Vt.  441.  This  is  the  rule  with  regard  to 
all  contracts :  McNear  v.  McComber,  18  Iowa,  17 ;  Hill  v.  Miller,  76  N.  Y. 
32;  Carriganv.  Insurance  Co.,  53  Vt.  418;  38  Am.  Rep.  687;  Clark  i;.  Wood- 
ruff, 83  N.  Y.  518 ;  Weisser  v.  Maitland,  3  Sand.  318 ;  Robertson  v.  French, 
4  East,  130.  But  both  the  written  ancl  printed  parts  will  be  construed 
together  and  operation  given  to  both  if  possible :  Harper  v.  Albany  Mut. 
Ins.  Co.,  17  N.  Y.  194;  Alsagar  v.  St.  Catherine's  Dock  Co.,  14  Mees.  & 
W.  794;  Goix  v.  Low,  1  Johns.  Cas.  341;  Hunter  v.  General  Mut.  Ins. 
Co.  of  N.  Y.,  11  La.  Ann.  139;  Wallace  v.  Insurance  Co.,  4  La.  289; 
Cushman  v.  Northwestern  Ins.  Co.,  34  Me.  487;  Howland  v.  Comm.  Ins. 
Co.,  Anth.  46 ;  Goicoechla  v.  Louisiana  State  Ins.  Co.,  6  Mart.,  N.  S.  (La.), 
51;  17  Am.  Dec.  175. 


^  337  pRiNcrrLES  of  construction.  1118 

etc.,  the  deed  is  a  quitclaiin  deed.^  If  the  deed  contains 
a  chuise  decisively  showing  the  intention  of  the  parties, 
ambiguities  and  inconsistencies  in  other  clauses  of  the 
deed  will  not  defeat  such  intention.^  As  said  by  Lord 
Wensleydale:  "The  question  is  not  what  the  parties  to 
a  deed  may  have  intended  to  do  by  entering  into  that 
deed,  but  what  is  the  meaning  of  the  words  used  in  tliat 
deed;  a  most  important  distinction  in  all  classes  of  con- 
struction, and  the  disregard  of  which  often  leads  to  er- 
roneous conclusions."  ^  The  express  language  of  a  deed, 
however,  cannot  be  subverted  by  a  mere  matter  of  con- 
venience or  taste.*  Where  a  technical  word  is  used,  evi- 
dently in  a  sense  different  from  its  technical  signification, 
the  court  will  give  to  it  the  construction  which  the 
grantor  intended.^  A  grantor  has  the  right  to  assign  to 
words  in  the  deed  a  meaning  different  from  that  which 
they  ordinarily  bear.''  But  the  construction  of  a  deed  is 
the  province  of  the  court.^     All  conveyances  affecting  real 

>  Cuminings  v.  Dearborn,  56  Vt.  441.  The  word  "premises"  may  re- 
fer to  the  interest  intended  to  be  conveyed  as  well  as  to  the  land. 

2  Bent  V.  Rogers,  137  Mass.  192.  In  Coleman  v.  Beach,  97  N.  Y.  545, 
553,  Mr.  Chief  Justice  Ruger,  in  delivering  the  opinion  of  the  court,  said : 
"If  the  disposition  which  the  owner  of  property  desires  to  make  does 
not  contravene  any  positive  prohibition  of  law,  his  control  over  it  is  un- 
limited, and  the  only  office  which  the  courts  are  called  upon  to  perform, 
in  construing  his  transfers  of  title,  is  to  discover  and  give  effect  to  hia 
intentions.  In  the  case  of  repugnant  dispositions  of  the  same  property 
contained  in  the  same  instrument,  the  courts  are  of  necessity  compelled 
to  choose  between  them ;  but  it  is  only  when  they  are  irreconcilably  re- 
pugnant that  such  a  disposition  of  the  question  is  required  to  be  made. 
If  it  is  the  clear  intent  of  the  grantor  that  apparently  inconsistent  pro- 
visions shall  all  stand,  such  limitations  upon,  and  interpretations  of  the 
literal  signification  of  the  language  used,  must  be  imposed,  as  will  give 
some  effect  if  possible  to  all  of  the  provisions  of  the  deed." 

*  In  Mony penny  v.  Monypenny,  9  Hoffm.  L.  Cas.  146.  See,  also,  Ex 
parte  Chick,  Re  Meredith,  11  Chip.  D.  739;  Evans  v.  Vaughan,  4  Barn. 
&  C.  2.J6;  Hilbers  v.  Parkinson,  25  Chip.  D.  203;  Smith  v.  Packhurst,  3 
Atk.  126. 

*  Frattw.  Woodworth,  32  Oal.  219;  91  Am.  Dec.  573. 

*  Central  Pacific  R.  R.  Co.  v.  Beal,  47  Cal.  151. 

8  Morrison  v.  Wilson,  30  Cal.  344.  See  Wilcoxson  v.  Sprague,  51  Cal. 
640. 

^  Moody  V.  Palmer,  50  Oal.  32.    See  Whitman  v.  Steiger,  46  Cal.  256. 


1119  PRINCIPLES    OF    CONSTRUCTION.  §  837 

estate,  so  far  as  questions  of  their  validity,  force,  effect, 
and  construction  are  concerned,  must  depend  entirely  on 
the  law  of  the  place  where  the  property  is  situated.' 
Words  which  are  not  technical  must  be  construed  as 
bearing  their  ordinary  signification.-  "  Rules  of  construc- 
tion are  adopted  with  a  view  to  ascertain  the  intention  of 
the  parties,  and  are  founded  in  experience  and  reason, 
and  not  arbitrarily  adopted.  They  are  not  intended  to 
make  terms  for  contracting  parties,  but  simply  to  ascer- 
tain what  the  language  means  which  they  have  employed 
in  their  contracts.  There  are  words  in  deeds,  as  in  notes 
and  other  instruments  which  have  a  technical  meaning, 
and  are  construed  accordingly;  but  language  in  deeds  or 
notes,  or  other  instruments,  not  technical,  must  be  taken 
in  its  ordinary  and  usual  sense.  There  is  no  reason  why 
a  rule  which  will  discover  the  meaning  of  language  not 
technical,  in  a  note  or  other  instrument,  may  not  be    re- 

A  deed  is  not  a  mere  quitclaim  deed  which  contains  the  words.  "  have 
bargained,  sold,  and  quitclaimed,  and  by  these  presents  do  bart^ain, 
sell,  and  quitclaim,  ....  all  our  right,  title,  and  interest,  estate,  claim, 
and  demand,  both  at  law  and  in  equity,  and  as  well  in  possession  as  in 
expectancy"  :  Wilson  v.  Irish,  62  Iowa,  260.  Where  a  person  who  holds 
a  second  mortgage,  and  is  also  co-assignee  in  bankruptcy  of  the  estate 
of  the  mortgagor,  executes  a  quitclaim  deed  of  the  property  to  a  third 
person,  the  latter  becomes  an  assignee  of  the  second  mortgage,  but  does 
not  take  the  interest  of  the  grantor  as  co-assignee  in  bankruptcy;  the 
assignees  in  bankruptcy  still  retain  the  equity  of  redemption:  South- 
wick  V.  Atlantic  Fire  &  Mar.  Ins.  Co.,  13;^  Mass.  457.  Where  the  deed 
shows  an  intent  to  transfer  any  future  interest  which  the  grantor  might 
acquire,  the  deed  will  be  treated  in  equity  as  an  executory  agreement  to 
convey,  and  the  grantor  will  be  compelled  to  convey  the  interest  subse- 
quently acquired :  Hannon  v.  Cliristopher,  34  N.  J,  Eq.  459.  Where  a 
person  conveys  to  a  town  and  "  their  successors  and  assigns  for  literary 
purposes,"  with  the  agreement  that  the  town  should  keep  the  property 
in  repair  "  for  the  specific  purpose  of  maintaining  a  public  school,"  this 
is  not  a  dedication  of  the  property  to  public  uses:  McGehee  v.  Wood- 
ville,  59  Miss.  648. 

^  West  V.  Fitz,  109  III.  425.  As  to  the  law  of  place  in  the  construction 
of  covenants,  see  Bethell  v.  Bethell,  54  Ind.  428;  23  Am.  Rep.  650. 
See,  also,  as  to  law  of  place,  Doe  d.  Moore  v.  Nelson,  3  McLean,  383; 
Clark  V.  Graham,  6  Wheat.  577.  See  as  to  statutory  jirovisions :  Butter- 
field  w.  Beall,  3  Ind.  203;  Root  v.  Brotherson,  4  McLean,  230. 

'  Bradshaw  v.  Bradbury,  64  Mo.  334. 


§§  S3S,  S3S  a     nuNcirLKs  of  construction.  1120 

sorted  to,  to  ascertain  the  meaning  of  language  not  tech- 
nical in  a  deed."^ 

§  83S.  Expression  of  grantor's  motive. — The  effect  of 
the  deed  must  depend  upon  the  effect  of  the  language 
used.  A  grantor  can  impose  conditions,  and  can  make 
the  title  conveyed  dependent  upon  their  performance. 
But  if  he  does  not  make  any  condition,  but  simply  ex- 
presses the  motiv^e  which  induces  him  to  execute  the 
deed,  the  legal  effect  of  the  granting  words  cannot  be 
controlled  by  the  language  indicating  the  grantor's  mo- 
tive.^ Thus,  where  a  deed  states  in  the  habendum  clause 
that  it  is  made  "  for  the  sole  and  separate  use  and  benefit 
of  the  wife  and  her  children  forever,"  these  words  will 
not  give  any  estate  to  the  children;  they  perform  no  other 
oflBce  than  to  indicate  the  grantor's  motive.  The  court 
said  that,  if  it  had  not  been  the  intention  of  the  parties 
to  convey  an  absolute  fee  to  the  grantee,  "  the  land  would 
doubtless  have  been  conveyed  to  a  trustee,  to  manage  it, 
and  to  apply  the  profits  to  the  support  of  the  wife  and 
children,  and  provision  made  for  turning  over  their  in- 
terests to  the  children  as  they  should  respectively  attain 
full  age.  The  consideration  flowed  from  her  alone,  and 
her  husband,  being  insolvent,  the  burden  of  maintaining 
the  famil}^  was  cast  upon  her.  The  language  of  the  ha- 
bendum of  the  deed  already  quoted  merely  indicates  the 
motive  for  the  conveyance  to  her,  which  was  to  provide 
a  home  and  the  means  of  support  for  herself  and  chil- 
dren, free  from  the  control  of  her  husband,  and  secure 
from  the  claiins  of  his  creditors."  ^ 

§  838  a.     Expressions    limiting    title    conveyed. — If  a 

grantor  conveys  all  his  right,  title,  and  interest,  and  adds 
"  being  a  one-half  undivided  interest,"  the  operation  of 
the  deed  to  convey  all  the  grantor's  interest,  is  not  limited 
by  these  words,  nor  will  they  be  construed  as  excepting 

1  Eradshaw  v.  Bradbury,  64  Mo.  334,  336,  per  Henry,  J. 

*  Mauzy  v.  Mauzy,  79  Va.  537. 

»  ilauzy  V.  Mauzy,  79  Ya.  537,  539,  and  cases  cited. 


1L21  PRINCIPLES    OF    CONSTRUCTION.  §  838  a 

any  interest  conveyed  by  the  prior  words  of  grant.^  Sub- 
sequent provisions  will  not  be  deemed  to  have  the  effect 
of  restricting  what  has  been  previously  granted.^  The 
effect  of  a  deed  conveying  land  cannot  be  destroyed  by  a 
clause  stating  that  it  is  intended  to  convey  the  title  which 
the  grantor  received  from  a  specified  deed,  when,  by  the 
latter,  no  title  whatever  was  conveyed.^  The  question  is 
not  always  one  of  intent,  but  of  enforcing  established 
and  well-defined  principles  of  law.  When  it  was  sought 
to  show,  by  the  language  of  the  deed  and  by  evidence 
offered  for  that  purpose,  that  the  grantor  received  no  title 
by  the  conveyance  specified  in  his  deed,  and  hence  his 
deed  passed  no  title,  Mr.  Justice  Emery  said:  "In  sup- 
port of  this  contention  the  defendant  invokes  the  broad 
proposition  that,  in  considering  written  instruments, 
courts  should  always  seek  for  the  actual  intent  of  the 
parties,  and  give  effect  to  that  intent  when  found,  what- 
ever the  form  of  the  instrument.  The  proposition  has 
been  stated  perhaps  as  broadly  as  this  in  text-books  and 
judicial  opinions,  but  it  is  not  universally  true.  It  is 
hedged  about  by  some  positive  rules  of  law,  which  the 
parties  must  heed  if  they  would  effectuate  their  intent,  or 
avoid  consequences  they  did  not  intend.  Muniments  of 
title,  especially,  are  guarded  by  positive  rules  of  law,  to 
secure  their  certainty,  precision,  and  permanency.  If,  in 
the  effort  to  ascertain  the  real  intent  of  the  parties,  one  of 
these  rules  is  encountered,  it  must  control,  for  no  positive 
rule  of  law  can  be  lawfully  violated  in  the  search  for 
intent.  Some  of  these  rules  prevent  an  intent  from 
becoming    effectual,  however    clearly   expressed,  because 

the   language   required   by   the  rule  was  not  used 

There  is  one  rule  pertaining  to  the  construction  of  deeds, 
as  ancient,  general,  and  rigorous  as  any  other.  It  is  the 
rule  that  a  grantor  cannot  destroy  his  own  grant,  how- 

»  McLennan  v.  McDonnell,  78  Cal.  273. 

»  Thornton  v.  Mehring,  117  111.  55;  Pike  v.  Monroe,  36  Me.  309;  58 
Am.  Dec.  751, 

»  Maker  v.  Lazell,  83  Me.  562;  23  Am.  St.  Rep.  795. 
Deeds,  Vol.  JI.  —  7i 


§  83S  b  PRINCIPLES    OF    CONSTRUCTION.  1122 

ever  much  he  may  modify  it  or  load  it  with  conditions — 
the  rule  that  having  once  granted  an  estate  in  his  deed, 
no  subscqueut  clause,  even  in  the  same  deed,  can  operate 
to  nullify  it.  We  do  not  find  that  this  rule  has  ever  been 
disregarded,  or  even  seriously  questioned,  by  courts.  We 
find  it  often  stated,  approved,  and  sometimes  made  a  rule 
of  decision."^  Thus,  where  an  owner  of  land  "releases, 
quitclaims,  and  conveys  [to  the  grantee],  and  its  successors 
and  assigns  forever,  all  his  claim,  right,  title,  and  interest 
of  every  name  and  nature,  legal  or  equitable  in,  and  to  " 
the  land,  and  by  a  subsequent  clause  declares  that  "the 
interest  and  title  intended  to  be  conveyed  by  this  deed  is 
only  that  acquired"  by  the  grantor  by  virtue  of  a  speci- 
fied deed  which  had  been  previously  executed  to  him,  and 
which  it  is  assumed  conveys  to  him  only  an  undivided 
half  interest  in  the  land,  the  two  clauses  are  inconsistent. 
The  words  contained  in  the  granting  clause  must  prevail, 
and  the  whole  interest  of  the  grantor  will  pass  by  the 
deed.^ 

§  838  b.  Subsequent  clauses  neither  enlarging-  nor 
liniitiug  grant. — Where  a  description  concludes  with  a 
statement  "meaning  and  intending  to  convey  the  same 
premises  conveyed  to  me,"  this  will  not  enlarge  the  grant, 
but  is  merely  an  aid  to  trace  the  title.*  If  the  description 
in  a  deed  is  clear  and  comj^lete,  a  statement  that  it  is  the 
same  land  described  in  a  recorded  agreement  will  not,  by 
reference  to  such  agreement,  be  construed  as  showing 
that  a  smaller  quantity  of  land  was  conveyed  than  w^ould 
appear  from  the  face  of  the  deed.*  In  case  a  fee  is  con- 
veyed, it  is  not  rendered  a  qualified  fee,  because  the  deed 
contains  a  declaration  of  the  use,  but  it  is  to  be  construed 

^  Maker  v.  Lazell,  83  Me.  662;  23  Am.  St.  Rep.  795. 

*  Green  Bay  and  Mississippi  Canal  Co.  v.  Hewett,  55  Wis.  96;  42  Am. 
Rep.  701. 

*  Brown  v.  Heard.  85  Me.  294. 

*  Jones  V.  Webster  Woolen  Co.,  85  Me.  210.  That  the  tendency  is  to 
uphold  the  deed,  see  §  855,  post. 


1123  PRINCIPLES    OF    CONSTRUCTION.  §   838  C 

as  directory  to  the  administration  of  the  trust.^  When 
hind  is  conveyed  to  the  bishop  of  the  Roman  Catholic 
Church,  for  the  benefit  of  the  church,  and  to  his  assigns 
and  successors  forever,  a  fee  simple,  in  the  absence  of  any 
conditions  subsequent,  either  express  or  implied,  is  vested 
in  such  bishop  in  trust  for  the  church.^  If  the  granting 
clause  in  a  deed  is  sufficient  to  conve}'-  all  of  the  interest 
of  the  grantor,  and  the  deed  also  contains  a  clause  stat- 
ing that  it  is  expressly  agreed  that  the  interest  conveyed 
by  the  deed  by  the  grantor  "is  that  only  which  he  ac- 
quired by  a  conveyance"  from  another  person,  and  the 
grantor  has  not  acquired  any  interest  from  the  latter,  but 
owns  an  interest  acquired  from  a  different  source,  the  in- 
terest of  the  grantor  is  conveyed  by  the  deed.' 

§  838  c.     Further    consideration — Execution    sales. — 

So,  in  the  case  of  a  deed  made  pursuant  to  a  sale  on  exe- 
cution, where  the  deed  conveys  all  the  right,  title,  and 
interest  of  the  judgment  debtor  in  and  to  certain  prop- 
erty specifically  described,  and  contains  the  phrase, 
"  being  a  leasehold  unexpired,  originally  granted"  in  a 
manner  described,  the  fee  will  pass  to  the  purchaser  when 
the  execution  debtor  is,  in  fact,  at  the  time  of  the  sale, 
the  owner  of  the  property.  The  recital  as  to  the  lease- 
hold interest  will  not  have  the  effect  of  limiting  the  estate 

^  Board  of  Commissioners  of  Mahoning  County  v.  Young,  59  Fed.  Rep. 
96;  8  CO.  A.  27. 

'  Gabert  v.  Olcott,  86  Tex.  121.  See,  also,  Pritchard  v.  Bailey,  113 
N.  C,  521;  Marsh  v.  Morris,  133  Ind.  548;  Branson  v.  Studebaker,  133 
Ind.  147;  Bodwell  Granite  Co.  v.  Lane,  83  Me.  168;  21  Atl.  Rep.  829. 
A  statement  in  a  deed  that  it  is  made  for  a  special  and  particular  jmrpose 
will  not  create,  by  implication,  a  condition  subsequent,  as  where  a  deed  to 
a  city  states  in  the  habendum  that  the  land  conveyed  is  to  be  held  forever 
as  and  for  a  street,  to  be  kept  as  a  public  hiyiiway."  If  the  city  fails 
to  use  the  land  conveyed  as  a  street,  it  does  not  revert  to  the  grantor: 
Kilpatrick  v.  Mayor  of  Baltimore,  81  Md.  179;  48  Am.  >St.  Rep.  509. 
See,  where  the  purpose  expressed  is  for  a  street,  8oukup  v.  Tnpka,  54 
Minn.  66;  50  N.  W.  Rep.  824;  Greene  v.  O'Connor,  18  R.  I.  56;  25  Atl. 
Rep.  692.  As  to  park,  see  Flaten  v.  City  of  Moorehead,  51  Minn.  518; 
53  N.  W.  Rep.  807. 

*  Wilcoxson  V.  Sprague,  51  Cal.  610. 


§   839  PRINCIPLES    OF    CONSTRUCTION.  1124 

conveyed  by  the  preceding  general  terms  of  description.^ 
Likewise,  if  the  language  in  the  deed  shows  that  an  un- 
divided moiety  is  conveyed,  and  it  is  subsequently 
claimed,  that  by  virtue  of  an  added  clause  in  the  deed 
the  grantor  really  intended  to  convey  an  undivided  one- 
quarter  interest  only,  the  court,  if  such  be  the  mean- 
ing of  the  clause,  will  reject  it  for  repugnance.^  If  a 
grantor  conveys  land  by  a  definite  description,  and  then 
adds,  "intending  hereby  to  convey  the  same  lands,  and 
no  other,  which  passed  to  me  by  virtue  of"  a  mortgage 
which  he  designates,  and  if  the  description  covers  other 
land  than  that  included  in  the  mortgage,  the  title  to  the 
additional  land  will  be  conveyed  by  the  deed.^  The 
whole  object  is  to  construe  the  deed  so  as  to  give  effect  to 
it,  if  possible,  as  a  conveyance,  and  clauses  which  are 
repugnant  to  the  general  intention  of  the  deed  must  be 
declared  void.^  Hence,  a  grant  made  in  the  premises  of 
a  deed  cannot  be  contradicted  or  retracted  in  a  subse- 
quent part  of  the  deed.* 

§  839.  Siirrouncling-  circumstances.  —  The  circum- 
stances connected  with  the  transaction  and  the  situation 
of  the  parties  may  be  considered  in  arriving  at  the  intent 
of  the  parties.^  On  a  portion  of  public  land  occupied  by 
two  parties,  a  dam  and   mill  had  been  erected.     One  of 

1  Dodge  V.  Walley,  22  Cal.  226. 

»  Cutler  V.  Tufts,  3  Pick.  272. 

»  Wilder  V.  Davenport,  58  Vt.  642. 

*  Wilcoxson  V.  Sprague,  51  Cal.  640. 

"  Winter  V.  Gorsuch,  51  Md.  180;  Buddt;,  Brooke,  3  Gill.  198;  43  Am. 
Dec.  321. 

6  Truett  V.  Adams,  66  Cal.  218 ;  Treat  v.  Strickland,  23  Me.  234 ;  Pico 
V.  Coleman,  47  Cal.  65 ;  Morris  Canal  etc.  Co.  v.  Matthiesen,  17  N.  J.  Eq. 
(2  Green)  385;  Mulford  v.  Le  Franc,  26  Cal.  88;  Abbott  v.  Abbott,  53 
Me.  356;  Hadden  v.  Shoutz,  15  111.  581;  Dunn  v.  English,  23  N.  J.  L.  (3 
Zab.)  126;  Adams  v.  Frothingham,  3  Mass.  352;  3  Am.  Dec.  151;  Brad- 
ford V.  Cressey,  45  Me.  9;  Hamm  v.  San  Francisco,  17  Fed.  Rep.  119; 
Winnipiseogee  etc.  Co.  v.  Perley,  46  N.  H.  83;  French  v.  Carhart,  1  N.Y. 
(1  Comst.)  96;  Saunders  v.  Clark,  29  Cal.  299;  Wade  v.  Deray,  50  Cal. 
376;  Kinney  v.  Hooker,  65  Vt.  333;  36  Am.  St.  Rep.  864.  See  Piper  v. 
True,  36  Cal.  606;  Sprague  v.  Edwards,  48  Cal.  239;  Kingsland  v.  New- 
York,  45  Hun,  198. 


1125  PRINCIPLES    OF    CONSTRUCTION.  §  840 

these  conveyed  to  the  other  six  acres  of  the  land,  describ- 
ing the  part  convej'^ed  by  metes  and  bounds,  with  the 
hereditaments  and  appurtenances  thereunto  belonging. 
It  was  agreed  between  the  parties  that  the  purchaser 
from  the  government  of  this  land  should  convej^  his 
recognized  portion  of  it  to  the  other.  By  reason  of  the 
structure  of  the  dam,  the  water  had  flowed  over  the  land 
of  both  parties,  and  the  court  held  that  the  right  to  flow 
the  land  was  an  appurtenance,  and  was  so  understood  at 
the  time  of  the  execution  of  the  deed.^  Where  land  ad- 
joins tide-waters  and  is  conveyed  "with  the  flats  adjoining 
the  land  and  appertaining  thereto,  meaning  to  convey 
only  the  flats  of  right  belonging  to  said  parcel  of  land," 
the  grantee  will  take  only  such  flats  as  the  court  may 
determine  to  belong  to  the  parcel  of  land  conveyed,  unless 
it  is  shown  by  sufficient  evidence  that  the  language  was 
used  by  the  parties  in  a  diff'erent  sense.  If  such  is  tho 
case,  the  language  must  receive  that  construction  which 
will  carry  out  the  intention  of  the  parties."  Whether  an 
instrument  is  or  is  not  a  deed,  is  a  question  of  law  to  be 
decided  by  the  court,  and  it  cannot  be  shown  to  be  a  deed 
by  evidence  dehors  the  instrument.^ 

§  840.  This  is  l>ut  one  rule.* — The  rule  mentioned  in 
the  preceding  section  is  but  one  of  the  numerous  rules  of 
construction,  the  object  of  all  of  which  is  to  ascertain  the 
intent  of  the  parties.  Generally,  in  the  construction  of 
every  doubtful  or  ambiguous  deed,  the  intent  cannot  be 
obtained  by  the  application  of  one  rule  alone.  All  should 
be  considered,  and  to  each  should  be  given  its  proper 
weight.  As  illustrating  the  manner  to  be  adopted  in  ar- 
riving at  the  intent  of  the  parties,  the  language  of  Mr. 
Chief  Justice  Shaw,  of  Massachusetts,  is  peculiarly  per- 
tinent:   "The   same   individual,  owning   two   tenements 

1  Iladden  v.  Shoutz,  15  111.  581. 
»  Treat  v.  Strickland,  23  Me.  234. 

*  Corlies  v.  Van  Note,  16  N.  J.  L.  (1  Har.)  324. 

*  This  section  is  cited  as  authority  in  Hickey  v.  Lake  Shore  etc.  Ry. 
Co.,  51  Ohio  St.  40;  46  Am.  St.  Rep.  545. 


§  S-40  PRINCIPLES    OF    CONSTRUCTION.  1126 

adjoining,  may  carve  out  and  sell  any  portion  that  he 
pleases,  and  the  terms  of  the  grant,  as  they  can  be  learned, 
cither  by  words  clearly  expressed,  or  by  just  and  sound 
construction,  will  regulate  and  measure  the  rights  of  the 
grantee.  In  construing  the  words  of  such  a  grant, 
where  the  words  are  doubtful  or  ambiguous,  several  rules 
are  applicable,  all,  however,  designed  to  aid  in  ascertain- 
ing what  was  the  intent  of  the  parties,  such  intent,  when 
ascertained,  being  the  governing  principle  of  construc- 
tion. And  first,  as  the  language  of  the  deed  is  the  lan- 
guage of  the  grantor,  the  rule  is,  that  all  doubtful  words 
shall  be  construed  most  strongly  against  the  grantor,  and 
most  favorably  and  beneficially  for  the  grantee.  Again, 
every  provision,  clause,  and  word  in  the  same  instrument 
shall  be  taken  into  consideration  in  ascertaining  the 
meaning  of  the  parties,  whether  words  of  grant,  of  cov- 
enant, or  description,  or  words  of  qualification,  restraint, 
exception,  or  explanation.  Again,  every  word  shall  be 
presumed  to  have  been  used  for  some  purpose,  and  shall 
be  deemed  to  have  some  force  and  effect,  if  it  can  have. 
And  further,  although  parol  evidence  is  not  admissible  to 
prove  that  the  parties  intended  something  different  from 
that  which  the  written  language  expresses,  or  which  may 
be  the  legal  inference  and  conclusion  to  be  drawn  from 
it,  yet  it  is  always  competent  to  give  in  evidence  existing 
circumstances,  such  as  the  actual  condition  and  situation 
of  the  land,  buildings,  passages,  watercourses,  and  other 
local  objects,  in  order  to  give  a  definite  meaning  to  lan- 
guage used  in  the  deed,  and  to  show  the  sense  in  which 
particular  words  were  probably  used  by  the  parties, 
especially  in  matters  of  description."^  Where  the  mean- 
ing is  doubtful,  evidence  as  to  the  acts  of  the  parties  may 
be  admitted  to  show  the  intent.^  But  where  the  terms  of 
the  deed  are  plain  and  intelligible,  and  the  instrument 
can  operate,  evidence  as  to  the  acts  of  the  parties  claim- 

'  In  Salesbury  v.  Andrews,  19  Pick.  250,  252. 
*_Winnipiseogee  etc.  Co.  v.  Perley,  46  N.  H.  83. 


1127  PRINCIPLES    OP    CONSTRUCTION.  §  841 

ing  under  it  is  not  admissible/  The  intent,  when  clearly- 
expressed,  cannot  be  altered  by  evidence  of  extraneous 
circumstances.^ 

§  841,  Appearance  at  time  of  sale. — If,  by  an  artifi- 
cial arrangement,  an  owner  of  land  has  created  an  ad- 
vantage for  one  part  of  the  land  to  the  detriment  of  the 
other,  the  holders  of  the  two  parts  upon  a  severance  of 
the  ownership,  take  them  as  they  openly  and  visibly  ap- 
peared at  time  of  the  deed.  As  said  by  Selden,  J:  "The 
rule  of  the  common  law  on  this  subject  is  well  settled. 
The  principle  is,  that  where  the  owner  of  two  tenements 
sells  one  of  them,  or  the  owner  of  an  entire  estate  sells  a 
portion,  the  purchaser  takes  the  tenement  or  portion 
sold,  with  all  the  benefits  and  burdens  which  appear  at 
the  time  of  the  sale  to  belong  to  it,  as  between  it  and  the 
property  which  the  vendor  retains.  This  is  one  of  the 
recognized  modes  by  which  an  easement  or  servitude  is 
created.  No  easement  exists  so  long  as  there  is  a  unity 
of  ownership,  because  the  owner  of  the  whole  may  at 
any  time,  rearrange  the  qualities  of  the  several  parts. 
But  the  moment  a  severance  occurs  by  the  sale  of  a  part, 
the  right  of  the  owner  to  redistribute  the  properties  of 
the  respective  portions  ceases;  and  easements  or  servi- 
tudes are  created,  corresponding  to  the  benefits  and  bur- 
dens mutually  existing  at  the  time  of  the  sale.  This 
is  not  a  rule  for  the  benefit  of  purchasers  only,  but  i-s 
entirely  reciprocal.  Hence,  if  instead  of  a  benefit  con- 
ferred, a  burden  has  been  imposed  upon  the  portion  sold, 
the  purchaser,  provided  the  marks  of  this  burden  are 
open  and  visible,  takes  the  property  with  the  servitude 
upon  it.  The  parties  are  presumed  to  contract  in  refer- 
inee  to  the  condition  of  the  property  at  the  time  of  the 
sale,  and  neither  has  a  right  by  altering  arrangements 
then  0{)enly  existing,  to  change  materially  the  relative 
value  of  the  respective  parts."  ^     A  person  leased  a  tract 

'  Dunn  7.\  Mank  of  Mobile,  2  Ala.  152;  Tlutchings  v.  Dixon,  11  Md.  29. 
»  Means  V.  Presbyteriari.Ciuirch,  3  Watts  &  S.  303. 
*  Lauipman  v.  Milks,  21  N.  Y.  505,  507. 


§  811  PRINCIPLES    OF    CONSTRUCTION.  1128 

of  land  to  A,  reserving  the  streams  of  water  and  the 
soil  under  them,  with  the  privilege  of  erecting  upon 
any  part  of  the  premises  mills  and  dams,  and  reserving 
also  the  land  which  might  be  overflowed  in  consequence 
of  such  dams.  A  sold  a  part  of  the  premises  to  B 
witli  like  exceptions,  and  the  latter  erected  a  dam  on 
his  Kind,  by  which  the  land  of  A  was  overflowed. 
The  court  held  that  until  the  original  owner  exercised 
his  right  and  erected  dams,  the  reservation  was  inopera- 
tive, and  if  considered  strictly  as  an  exception,  was  void 
for  uncertainty.*  Where  a  tract  of  land  is  conveyed,  de- 
scribed by  metes  and  bounds,  with  a  mill  upon  it,  and 
there  was  at  the  time  of  the  conveyance  a  raceway  to  con- 
duct the  water  from  the  mill  running  along  the  side  of  a 
stream  beyond  the  limits  of  the  land  conveyed  into  other 
land  owned  by  the  grantor,  and  finally  discharging  into 
the  stream,  and  this  raceway  had  been  used  for  many 
years  in  connection  with  the  mill,  and  was  required  for 
the  convenient  use  of  the  mill,  the  right  to  the  uninter- 
rupted flow  of  the  water  through  the  whole  extent  of  the 
raceway  passed  by  the  conveyance,  as  appurtenant  to  the 
mill.^     If  a  deed  grants  a  right  of  way  over  other  lands 

'  Thompson  v.  Gregory,  4  Johns.  81 ;  4  Am.  Dec.  255. 

*  New  Ipswich  Factory  v.  Batchelder,  3  N.  H.  190  j  14  Am.  Dec.  346. 
The  court  quoted  this  language  from  Nicholas  v.  Chamberlain,  Cro. 
James,  121:  "It  was  held  by  all  the  court,  upon  demurrer,  that  if  one 
erect  a  house  and  builds  a  conduit  thereto  in  another  part  of  his  land, 
and  conveys  water  by  jjipes  to  the  house,  and  afterward  sells  the  house 
with  tlie  appurtenances,  excepting  the  land,  or  sells  the  land  to  another, 
reserving  to  himself  the  house,  the  conduit  and  the  pipes  pass  with  the 
house ;  because  they  are  necessary  and  quasi  appendant  thereto.  And  he 
shall  have  liberty  by  law  to  dig  in  the  land  for  amending  the  pipes,  or 
making  them  new,  as  the  case  may  require.  So  it  is,  if  a  lessee  for  years 
of  a  house  and  land  erect  a  conduit  upon  the  land,  and  after  the  term 
determines,  the  lessor  occupies  them  together  for  a  time,  and  afterward 
sells  the  house  with  the  appurtenances  to  one,  and  the  land  to  another, 
the  vendee  shall  have  the  conduit  and  pipes,  and  liberty  to  amend 
them."  The  court  then  declares  that  the  rule  thus  laid  down  "seems 
to  us  to  be  founded  on  sound  reason  and  good  sense,  and  to  apply  in  all 
its  force  to  the  case  now  before  us.  A  raceway  may  be  as  necessary  an 
appurtenance  to  a  mill  to  conduct  the  water  from  it,  as  a  canal  to  con- 
duct to  it  the  water  necessary  to  work  it.     In  many  cases  a  severance  of 


1129  PRINCIPLES    OF    CONSTRUCTION.  §  842 

of  the  grantor,  and  subsequently,  by  parol  agreement,  the 
parties  locate  the  precise  position  of  the  way,  the  right  of 
way  which  will  pass  to  a  subpurchaser  is  limited  and  de- 
fined by  such  agreement.^ 

§  842.  Illustrations. — Another  illustration  of  the  prin- 
ciple that  where  the  owner  of  two  tenements  sells  one  of 
them,  the  grantee  takes  the  premises  with  the  benefits  and 
burdens  which  appear  at  the  time  of  the  conveyance  to 
belong  to  it,  is  a  case  where  the  owner  of  a  spring  lot  and 
of  a  paper  mill  on  another  tract  had  conveyed  the  water 
to  the  mill  by  an  artificial  arrangement.  He  sold  the 
spring  lot,  and  the  court  held  that  the  grantee  took  it 
subject  to  the  burden.^  If  a  boundary  line  is  described 
as  running  up  the  river  to  certain  falls,  "thence  continu- 
ing to  run  in  such  a  direction  as  to  include  a  millyard 
and  the  whole  of  a  millpond,  which  may  be  raised  by  a 
dam  on  said  falls  to  a  certain  road,"  the  description  de- 
termines the  boundary  of  the  land  itself,  and  not  the 
height  to  which  it  is  permissible  to  raise  the  pond.^  It 
was  said  by  Judge  Story :  "  It  has  been  very  correctly 
stated  at  the  bar,  that  in  the  construction  of  grants  the 
court  ought  to  take  into  consideration  the  circumstances 
attendant  upon  the  transaction,  the  particular  situation 
of  the  parties,  the  state  of  the  country,  and  the  state  of 
the  thing  gE«,nted,  for  the  purpose  of  ascertaining  the  in- 
tention of  the  parties.  In  truth,  every  grant  of  a  thing 
naturally  and  necessarily  imports  a  grant  of  it  as  it  ac- 
tually exists,  unless  the  contrary  is  provided  for."*     But 

the  appurtenance  from  the  thing  to  which  it  is  appurtenant,  wouM  ren- 
der both  useless.  For  aught  we  know,  that  may  be  the  case  in  this 
instance.  But  however  that  may  be,  the  case  finds  that  the  raceway 
was  necessary  for  the  convenient  working  of  the  mills.  Shepherd  in  his 
Touchstone,  89,  says :  'By  the  grant  of  mills  the  waters,  floodgates,  and 
the  like,  that  are  of  necessary  use  to  the  mills,  do  pass,'  and  we  enter- 
tain no  doubt  that  the  raceway  in  this  case  passed  by  Barrett's  deed,  as 
an  appurtenance  to  the  mill." 

'  Kinney  v.  Hooker,  G5  Vt.  3:J3;  36  Am.  St.  Rep.  804. 

'  Seymour  v.  Lewis,  13  N.  J.  Eq.  43'J ;  78  Am.  Dec.  108. 

»  Hull  V.  Fuller,  4  Vt.  199. 

*  In  United  States  v.  Appleton,  1  Sum.  492,  501, 


8  843  PRINCIPLES    OF    CONSTRUCTION.  1130 

actual  knowledge  on  the  part  of  the  contracting  parties 
will  repel  the  presumption  of  law,  that  in  the  case  of  the 
sale  of  land  the  parties  contract  with  reference  to  the 
physical  condition  of  the  property  at  the  time/  The  re- 
sult of  the  decisions  on  this  question  is  thus  summed  up 
by  Mr.  Justice  Folger:  "1st.  That  when  an  owner  of  a 
whole  tenement  has  by  some  artificial  arrangement  of  the 
material  properties  of  his  estate,  added  to  the  advantages 
and  enhanced  the  value  of  one  portion  of  it,  he  cannot 
after  selling  that  portion  with  those  advantages  openly 
and  visibly  attached,  voluntarily  break  up  the  arrange- 
ment, and  thus  destroy  or  materially  diminish  the  value 
of  the  portion  sold.  2d.  It  is  further  held,  that  the  mo- 
ment the  severance  of  the  tenement  takes  place  by  a  sale 
of  a  part,  the  right  of  the  owner  to  redistribute  the  prop- 
erties of  the  respective  portions  ceases,  and  easements  and 
servitudes  are  created,  corresponding  to  the  benefits  and 
burdens  mutually  existing  at  the  time  of  the  sale.  3d.  It  is 
further  held,  that  parties  are  presumed  to  contract  in  refer- 
ence to  the  condition  of  the  property  at  the  tiuae  of  the 
sale,  and  that  neither  has  a  right  by  altering  arrange- 
ments  then  openly  existing,  to  change  materially  the  rela- 
tive value  of  the  respective  parts."  ^ 

§  843.  Grammatical  construction. — "A  grammatical 
construction  is  not  always  to  be  followed,  and  it  has  been 
well  said  that  neither  false  English  nor  bad  Latin  will 
make  void  a  deed  when  the  meaning  of  the  party  is  ap- 
parent. In  construing  an  instrument,  that  construction 
is  always  to  be  adopted  which  will  accomplish  the  object 
for  which  the  instrument  was  executed."'  A  father  exe- 
cuted a  deed  to  his  son,  reserving  a  maintenance  to  him- 

^  Simmons  v.  Cloonan,  47  N.  Y.  3. 

*  In  Simmons  v.  Cloonan,  47  N.  Y.  3,  9.  -And  see,  also,  Curtis  v. 
Ayrault,  47  N.  Y.  73 ;  Cox  v.  Matthews,  1  Vent.  237 ;  Hazard  v.  Robin- 
Bon,  3  Mason,  272;  Brakely  v.  Sharp,  2  Stockt.  Ch.  206;  Bobbins  v. 
Barnes,  Hob.  131;  Pahner  v.  Fletciier,  1  Lev.  122;  2  Sid.  167;  Shury  v. 
Piu'got,  3  Bulst.  339;  Kilgour  v.  Ashcom,  5  Har.  &  J.  82;  Dunklea  v.  Mil- 
ton K.  R.  Co.,  4  Fost.  (N.  H.)  489. 

»  Hancock  v.  Watson,  18  Oal.  137,  per  Cope,  J. 


1131  PRINCIPLES    OP    CONSTRUCTION.  §   844 

self,  and  requiring  the  payment  of  his  debts.  The  deed 
contained  a  condition  giving  the  grantor  a  right  of  re- 
entry in  case  the  grantee  neglected  to  pay  such  debts,  and 
suffered  the  grantor  to  be  put  to  cost,  trouble,  or  expense 
on  account  of  such  debts.  The  court  held,  that  after  the 
grantor's  death,  the  neglect  to  pay  a  debt  which  he  owed, 
although  not  presented  after  his  death,  worked  a  forfei- 
ture of  the  estate,  and  that  the  grammatical  sense  of  words 
is  not  to  be  adhered  to  in  the  construction  of  either  a 
deed  or  a  will  where  a  contrary  intent  is  manifest;  and 
that  the  word  "and"  may  be  read  "or,"  when  by  so  doing 
effect  will  be  given  to  the  intent  of  the  parties.*  "It  is 
not  the  practice  of  courts  of  justice  to  divest  persons  of 
their  estates  by  a  rigid  adherence  to  the  rules  of  gram- 
matical construction,  or  by  a  strict  interpretation  of  the 
language  of  an  instrument,  when  the  sense  in  which  the 
words  were  used  is  apparent  from  other  portions  of  the  in- 
strument viewed  in  the  light  of  the  attending  facts. 
The  sole  object  to  be  obtained  in  the  construction  of  con- 
tracts is  to  ascertain  the  real  intention  of  the  parties;  and 
with  this  view  the  whole  contract  and  all  its  provisions, 
together  with  the  relations  of  the  parties  toward  each 
other,  will  be  considered;  and  effect  will  be  given  to  the 
intent  thus  ascertained,  however  clumsily  the  instrument 
may  be  worded,  and  however  grossly  it  may  violate  the 
strict  rules  of  grammatical  construction."" 

§  844:.  Resort  to  punctuation. — While  little  regard 
is  to  be  paid  to  punctuation,  yet  it  may  be  looked  to  as  a 
last  resort.  "  Punctuation,"  says  Mr.  Justice  Baldwin, 
"is  a    most    fallible    standard   by  which   to    interpret  a 

1  Jackson  v.  Topping,  1  Wend.  388;  19  Am.  Dec.  515. 

'  Sprague  v.  Edwards,  48  Cal.  239,  249,  per  Mr.  Justice  Crockett,  in 
delivering  tlie  opinion  of  tiie  court.  See,  also,  Racouiilat  v.  Sansevain, 
32  Cal.  376,  387.  Relative  words  in  the  construction  of  all  contracts  are 
generally  deemed  to  refer  to  the  nearest  antecedent:  Bold  v.  Molineux, 
Dyer,  14  b:  Com.  Dig.  tit.  Parols  (A.  14);  Rex  v.  Inhabitants  of  St. 
Mary's.  1  Barn.  &  Aid.  327;  Baring  v.  Christie,  5  East,  398;  2  Parsons 
on  Contracts  (6th  ed.),  513.  But  see  Gray  i>.  Clark,  11  Vt.  583;  Stami- 
land  V.  Hopkins,  9  Mees.  &  W.  178;  Curbouel  v.  Da  vies,  1  Strange,  394. 


§  845  PKINCIPLES    OF    CONSTRUCTION.  1132 

writing.  It  may  be  resorted  to  when  all  other  means  fail; 
but  the  court  will  first  take  the  instrument  by  its  four 
corners  in  order  to  ascertain  its  true  meaning;  if  that  is 
apparent,  on  judicially  inspecting  the  whole,  the  punctu- 
ation will  not  be  suffered  to  change  it."  ^ 

§  845.  Construing  deeds  tog-ether.  —  When  two  or 
more  deeds  are  executed  at  the  same  time  between  the  same 
parties,  in  relation  to  the  same  subject  matter,  they  may,  in 
some  instances,  for  the  purpose  of  construing  their  in- 
tent and  effect,  be  taken  together  and  treated  as  one  in- 
strument." But  to  enable  two  or  more  instruments  to  be 
read  together  it  is  not  sufficient  that  they  were  made  be- 
tween the  same  parties  and  at  the  same  time.  The  rule 
cannot  apply  unless  the  instruments  themselves  show,  or 
the  fact  is  made  to  appear  by  extrinsic  evidence,  that 
they  relate  to  the  same  transaction.  Hence,  where  a 
party's  title  to  two  adjoining  parcels  of  land  is  derived 
by  a  separate  deed  for  each  parcel,  from  the  same  grantor, 
and  bearing  the  same  date,  but  which  do  not  refer  to  each 
other,  and  in  one  of  the  deeds  a  piece  of  land  which  is 
parcel  of  the  premises  conveyed  by  the  other  deed  is  in 
terms  excepted,  each  deed  must  stand  by  itself;  and  a3 
the  exception  is  not  for  a  part  of  the  thing  granted  by  the 
deed  in  which  it  was  contained,  it  is  void.'     When  the 

'  Ewing  V.  Burnet,  11  Pet.  41.  See,  also.  Doe  v.  Martin,  4  Term  Rep. 
65 ;  3  Dane  Abr.  558. 

''  Clapw.  Draper,  4  Mass.  266;  3  Am.  Dec.  215;  Cornell  v.  Todd,  2 
Denio,  130;  King  v.  King,  7  Mass.  496;  Patterson  v.  Donner,  48  Cal.  369; 
Cloyes  V.  Sweetser,  3  Cush.  403;  Jackson  v.  McKenny,  3  Wend.  233;  20 
Am.  Dec.  690;  Jackson  v.  Dunsbagh,  1  Johns.  Gas.  91 ;  Gerdes  v.  Moody, 
41  Cal.  335;  Pulliam  v.  Bennett,  55  Oal.  3G8.  See  Putnam  v.  Stewart, 
97  N.  Y.  411;  Moore  v.  Fletcher,  16  Me.  63;  33  Am.  Dec.  633;  Leach  v. 
Leach,  4  Ind.  628;  58  Am.  Dec.  642;  Wildman  v.  Taylor,  4  Ben.  42; 
Isham  V.  Morgan,  9  Conn.  374;  23  Am.  Dec.  361. 

*  Cornell  v.  Todd,  2  Denio,  130.  Said  the  court,  per  Bronson,  C.  J: 
"  It  is  not  necessary  that  the  instruments  should  in  terms  refer  to  each 
other,  if,  in  point  of  fact  they  are  parts  of  a  single  transaction.  But  un- 
til It  appears  that  they  are  such,  either  from  the  writings  themselves,  or 
by  extrinsic  evidence,  the  case  is  not  brought  within  the  rule.  Now, 
here  there  is  no  reference  in  either  of  the  two  deeds  to  the  other;  nor  is 
there  any  extrinsic  evidence,  if  such  would  have  been  admissible,  that 


1133  PRINCIPLES    OF    CONSTRUCTION.  §  845 

same  grantor  makes  separate  deeds  to  different  grantees, 
they  will  not  be  construed  together  in  determining  the 
rights  of  the  grantees  with  respect  to  the  common  subject 
matter.^  Where  a  grantor  executed  a  deed  conveying  the 
absolute  fee,  and,  at  the  same  time,  the  grantee  executed 
an  instrument  which  recited  that  he  received  the  property 
charged  with  the  settlement  of  the  just  debts  of  the  grantor, 
this  instrument  is  admissible  in  evidence  in  an  action  of 
ejectment  brought  by  the  grantee  to  show,  on  the  part  of 
the  defendant,  that  the  grantee  had  put  a  trust  in  the 
property,  and  that  therefore  the  widow  of  the  grantor, 
who  had  intermarried  with  the  defendant  since  the  exe- 
cution of  the  deed,  was  entitled  to  dower  in  the  land.^ 
Where  several  deeds  of  release  are  executed  as  parts  of 
one  and  the  same  transaction  in  effecting  a  partition  of 
real  estate  between  heirs,  tenants  in  common,  they  must, 
in  their  construction,  be  read  together,  and  by  their  com- 

they  were  both  parts  of  one  act.  They  are  between  the  same  parties, 
and  have  the  same  date;  but  it  is  not  inferable  from  those  facts  alone 
that  they  are  parts  of  a  single  transaction.  It  may  very  well  be  that 
the  same  parties  should  have  several  transactions  in  one  day,  and  of  the 
same  general  nature,  and  yet  that  each  one  should  be  distinct  from  and 
wholly  independent  of  the  other.  But  there  is  something  more  than 
the  want  of  a  connecting  link  between  these  two  deeds.  They  do  not  re- 
late to  the  same  subject  matter.  It  is  true  that  they  are  both  convey- 
ances of  land ;  but  the  parcels  are  separate  and  distinct,  and  each  deed 
stands  upon  its  own  independent  consideration.  This  is  a  decisive  feat- 
ure in  the  case.  Where  two  deeds  neither  refer  to  each  other,  nor  re- 
late to  the  same  subject  matter,  I  am  not  aware  of  any  principle  upon 
•which  one  can  be  made  to  qualify,  or  in  any  way  affect  the  legal  con- 
Btruction  of  the  other.  No  extrinsic  evidence  could  help  out  the  defend- 
ant's case;  for  whatever  might  be  proved,  it  would  still  remain  true 
that  the  deeds  themselves  neither  refer  the  one  to  the  other,  nor  do  they 
relate  to  the  same  subject  matter;  and  parol  evidence  cannot  be  allowed 
to  control  the  legal  effect  or  operation  of  a  deed."  For  a  case  in  which 
an  absolute  deed  and  a  deed  in  trust  for  the  benefit  of  the  grantor's  un- 
Becured  creditors  were  construed  together,  see  Kruse  v.  Prindle,  8  Or. 
158. 

'  Rexford  v.  Marquis,  7  Lans.  249. 

*  Doe  V.  Bernard,  15  Miss.  (7  Smedea  &  M.)  319,  And  see  Bell  v. 
Mayor  of  New  York,  10  Paige,  49;  Pepper  v.  Haight,  20  I'.urb.  429;  Ford 
V.  Belmont,  7  Rob.  (N.  Y.)  97;  Everett  v.  Thomas,  1  Ired.  252;  Field  v, 
Huston,  21  Me.  69. 


§  SIG  PRINCirLES    OF    CONSTRUCTION.  1134 

bined  effect  the  rights  of  the  parties  under  them  must  be 
settled.'  Reciting  a  previous  agreement  in  a  deed  is 
equivalent  to  confirming  and  renewing  it.'^ 

§  846.  Rule  in  Shelley's  case. — The  rule  in  Shelley's 
case  has  been  much  discussed  in  works  treating  of  the 
law  of  real  property.  The  rule  is  thus  stated:  "When 
the  ancestor  by  any  gift  or  conveyance,  taketh  an  estate 
of  freehold,  and  in  the  same  gift  or  conveyance  an  estate 
is  limited,  either  mediately  or  immediately,  to  his  heirs  in 
fee  or  in  tail,  the  heirs  are  words  of  limitation  of  the  es- 
tate, and  not  words  of  purchase." '  In  Kent's  Commen- 
taries, the  definition  given  by  Mr.  Preston  as  abridged,  is 
said  to  be  full  and  accurate:  "When  a  person  takes  an 
estate  of  freehold,  legally  or  equitably,  under  a  deed, 
will,  or  other  writing,  and  in  the  same  instrument  there 
is  a  limitation  by  way  of  remainder,  either  with  or  with- 
out the  interposition  of  another  estate,  of  an  interest  of 
the  same  legal  or  equitable  quality,  to  his  heirs  or  heirs  of 
his  bod}',  as  a  class  of  persons  to  take  in  succession,  from 
generation  to  generation,  the  limitation  to  the  heirs  entitles 
the  ancestor  to  the  whole  estate."  *  And  Kent  himself  says: 

»  White  V.  Brocaw,  14  Ohio  St.  339. 

*  Salbourn  v.  Houstoun,  1  Bing.  433;  Barfootf.  Freswell,  3  Keb.  465; 
Sampson  v.  Easterby,  9  Barn.  &  C.  505.  But  covenants  contained  in  a 
prior  agreement  will  not  run  with  the  land  because  the  deed  recites  that 
it  is  executed  "  per  agreement "  :  Close  v.  Burlington,  Cedar  Kapids  etc. 
Ey.  Co.,  64  Iowa,  149.  And  see  Hunt  v.  Amidon,  4  Hill,  345;  40  Am. 
Dec.  283.  Where  land  was  sold  on  condition  that  the  vendee  and  a  third 
party  should  execute  a  bond  not  to  erect  certain  buildings  on  the  land^ 
and  the  bond  was  signed  before  the  execution  of  the  deed,  but  both  were 
delivered  on  the  same  day,  the  court  held  that  the  two  instruments 
should  be  construed  as  parts  of  one  and  the  same  transaction,  notwith- 
Btanding  that  the  deed  did  not  refer  to  the  bond,  and  the  bond  recited 
that  the  vendee  had  purchased  the  land :  Robbins  v.  Webb,  68  Ala.  393. 
A  prior  unrecorded  deed  is  not  defeated  by  a  subsequent  deed  of  the 
grantor's  "  now  remaining  interest "  in  land,  because  both  deeds  may 
Btand  together,  as  the  second  deed  is  not  a  conveyance  of  anything  pre- 
viously conveyed :  Eaton  W.Trowbridge,  38  Mich.  455. 
»  1  Coke,  104. 

*  Kent' s  Com ,  215 ;  1  Preston  on  Estates ,  263-419.  But  where  this  rule 
fltill  prevails,  courts  are  inclined  to  confine  its  operation  within  strict 
limits:  Mcllhinuy  v.  Mcllhinny,  137  Ind.  411 ;  45  Am.  St.  Rep.  186, 


1135  PKINCIPLES    OF    CONSTRUCTION.  §  846 

**  The  word  'heirs/  or  'heirs  of  the  body,'  creates  a  remain- 
der in  fee  or  in  tail,  which  the  law  to  prevent  an  abeyance 
vests  in  the  ancestor,  who  is  tenant  for  life,  and  by  the 
conjunction  of  the  two  estates  he  becomes  tenant  in  fee  or 
in  tail;  and  whether  the  ancestor  takes  the  freehold  by 
express  limitation,  or  by  resulting  use,  or  by  implication 
of  law;  in  either  case  the  subsequent  remainder  to  his 
heirs  unites  with  and  is  executed  on  his  estate  for  life. 
Thus  where  A  was  seised  in  fee,  and  covenanted  to  stand 
seised  to  the  use  of  his  heirs  male,  it  was  held  that  as  the 
use  during  his  life  was  undisposed  of,  it  of  course  re- 
mained in  him  for  life  by  implication,  and  the  subsequent 
limitation  to  his  heirs  attached  in  him."^  This  rule  has 
in  a  number  of  instances  as  to  both  deeds  and  wills,  been 
recognized  and  enforced  in  this  country  as  a  part  of  the 
common  law.^  "But  in  many  States  the  rule  is  now  abol- 
ished by  statute,  and  of  the  abolition  of  the  rule,  it  is  said 
by  Kent  that  "in  its  practical  operation  it  will,  in  cases 
where  the  rule  would  otherwise  have  applied,  change 
estates  in  fee  into  contingent  remainders.  It  sacrifices 
the  paramount  intention  in  all  cases,  and  makes  the  heirs 
instead  of  the  ancestor  the  stlrps  or  terminus  from  which 
the  posterity  of  heirs  is  to  be  deduced.  It  will  tie  up 
property  from  alienation  during  the  lifetime  of  the  lirst 
taker,  and  the  minority  of  his  heirs.  But  this,  it  may 
perhaps  be  presumed,  was  the  actual  intention  of  the 
party  in  every  case,  in  which  he  creates  an  express  estate 
for  life  in  the  first  taker,  for  otherwise  he  would  not  have 
so  limited  it.     It  is  just  to  allow  individuals  the  liberty 

1  4  Kent's  Com.  215. 

'  Ridgeway  v.  Lamphear,  99  Ind.  251  j  Payne  v.  Sayle,  2  Dev.  &  B. 
Eq.  455;  Ware  v.  Richardson,  3  Md.  505;  56  Am.  Dec.  762;  Roy  v.  Gar- 
nett,  2Wash.  (Va.)  9;  Polk  v.  Farig,  9  Yerg.  209;  30  Am.  Dec.  400; 
Simper's  Lessee  v.  Simper,  15  Md.  160;  Carr  v.  Porter,  1  McCord  Cli.  <J0; 
Dottv.  Cunnington,  1  Bay,  453;  1  Am.  Dec.  624;  Cooper  v.  Cooper,  6 
R.  I.  261;  Davidson  v.  Davidson,  1  Hawks,  163;  Home  v.  Lyeth,  4  Har. 
&  J.  531 ;  Kiser  v.  Kiser,  2  Jones  Eq.  28 ;  Hodges  v.  Little,  7  Jonea 
(N.  C),  145;  Lyles  v.  Digges,  6  Plar.  &  J.  301 ;  15  Am.  Dec.  281 ;  Bishop 
V.  Selleck,  1  Day,  299 ;  Brant  v.  Gelston,  2  Johns.  Cas.  384.  See  Green 
v.  Green,  23  Wall.  486. 


§  846  rKTNCIPLES    OF    CONSTRUCTION.  1136 

to  make  strict  settlements  of  their  property  in  their  own 
discretion,  provided  there  be  nothing  in  such  dispositions 
of  it  affecting  the  rights  of  others,  nor  inconsistent  with 
public  policy  or  the  settled  principles  of  law.  But  this 
liberty  of  modifying  at  pleasure  the  transmission  of  prop- 
erty is  in  many  respects  controlled,  as  in  the  instance  of 
a  devise  to  charity,  or  to  aliens,  or  as  to  the  creation  of 
estates  tail;  and  the  rule  in  Shelley's  case  only  operated 
as  a  check  of  the  same  kind  and  to  a  very  moderate  de- 
gree. Under  the  existence  of  the  rule,  land  might  be 
bound  up  from  circulation  for  a  life,  and  twenty-one  years 
afterward,  only  the  settler  was  required  to  use  a  little 
more  explicitness  of  intention  and  a  more  specific  pro- 
vision. The  abolition  of  the  rule  facilitates  such  settle- 
ments, though  it  does  not  enlarge  the  individual  capacity 
to  make  them;  and  it  is  a  question  for  experience  to 
decide  whether  this  attainable  advantage  will  overbalance 
the  inconvenience  of  increasing  fetters  upon  alienation, 
and  shaking  confidence  in  law,  by  such  an  entire  and 
complete  renunciation  of  a  settled  rule  of  property,  mem- 
orable for  its  antiquity,  and  for  the  patient  cultivation 
and  discipline  which  it  has  received."  ^ 

^  4  Kent's  Com.  232.  And  in  a  note  he  adds:  "The  juridical  scholar 
on  whom  his  great  master,  Coke,  has  bestowed  some  portion  of  the 
'gladsome  light  of  jurisprudence,'  will  scarcely  be  able  to  withhold  an 
involuntary  sigh  as  he  casts  a  retrospective  glance  over  the  piles  of 
learning  devoted  to  destruction  by  an  edict  as  sweeping  and  unrelenting 
as  the  torch  of  Omar.  He  must  bid  adieu  forever  to  the  renowned  dis- 
cussions in  Shelley's  case,  which  were  so  vehement  and  so  protracted  as 
to  rouse  the  sceptre  of  the  haughty  Elizabeth.  He  may  equally  take 
leave  of  the  multiplied  specimens  of  profound  logic,  skillful  criticism, 
and  refined  distinctions  which  pervade  the  varied  cases  in  law  and 
equity,  from  those  of  Shelley  and  Archer,  down  to  the  direct  collision 
between  the  courts  of  law  and  equity,  in  the  time  of  Lord  Hardwicke. 
He  will  have  no  more  concern  with  the  powerful  and  animated  discus- 
sions in  Perrin  v.  Blake,  which  awakened  all  that  was  noble  and  illus- 
trious in  talent  and  endowment,  through  every  precinct  of  Westminster 
Hall.  He  will  have  occasion  no  longer  in  pursuit  of  the  learning  of  that 
case,  to  tread  the  clear  and  bright  paths  illuminated  by  Sir  William 
Blackstone's  illustrations,  or  to  study  and  admire  the  spirited  and  in- 
genious dissertation  of  Hargrave,  the  comprehensive  and  profound  dis- 
quiaition  of  Fearne,  the  acute  and  analytical  essay  of  Preston,  the  neat 


1137  PRINCIPLES    OF    CONSTRUCTION.  §  847 

§  847.  Lawful  issue. — In  connection  with  the  rule  in 
Shelley's  case,  we  call  the  reader's  attention  to  a  peculiarly- 
worded  deed  where  the  grant  was  to  a  person  "and  to  his 
lawful  issue,  to  go  to  his  surviving  brother  or  brothers  and 

and  orderly  abridgment  of  Cruise,  and  the  severe  and  piercing  criticisms 
of  Reeves.  What  I  have,  therefore,  written  on  this  subject,  may  be 
considered,  so  far  as  my  native  State  is  concerned,  as  a  humble  monu- 
ment to  the  memory  of  departed  learning":  4  Kent's  Com.  232.  In 
Missr^uri,  since  the  abolition  of  this  rule,  a  deed  to  a  person  for 
life,  with  remainder  over  in  fee  simple  to  the  heirs,  creates  sim- 
ply a  life  estate  in  such  person:  Tesson  v.  Newman,  62  Mo.  198.  Aa 
to  the  States  in  which  this  rule  has  been  abolished,  see  Alabama 
Code,  1867,  §  1574;  New  York,  Rev.  Stats.  (4th  ed.)  pt.  2,  tit.  2, 
art.l,  §  28;  Virginia  Code,  1873,  c.  112,  §11;  Wisconsin,  Rev.  Stats. 
1878,  §  2052;  California,  Civil  Code,  §  779;  Maine,  Rev.  Stats.  1883,  c.  73, 
§  6 ;  Connecticut,  Gen.  Stats.  1866,  p.  537,  §  5 ;  Rev.  Stats.  1875,  tit.  18,  c.  6, 
§  4;  Kentucky,  Rev.  Stats.  1852,  c.  80,  §  10;  Massachusetts,  Pub.  Stats. 
c.  126,  §  4;  Michigan,  Comp.  Laws,  1857,  c.  85,  §  28;  Annot.  Stats. 
§  5544;  Minnesota,  Rev.  Stats,  c.  45,  §28;  Comp.  Laws,  1859,  c.  31,  §  28; 
Missouri,  Rev.  Stats.  1879,  §  3943;  New  Jersey,  Stats,  tit.  10,  c.  2,  §  10; 
Tennessee,  Code,  1858,  §  2008;  Mill  &Vert.  Code,  §  2514.  And  see,  also, 
Comp.  Laws  Kansas,  1879,  c.  117,  §  52;  Mississippi,  Code,  1830,  §  1201; 
New  Hampshire,  Gen.  Stats.  1867,  c.  174,  §  5;  Gen.  Laws,  c.  193,  §  5; 
New  Jersey,  Stats,  tit.  10,  c.  2,  §10;  Rev.  Stats.  1877,  Descent,  §  10; 
Rhode  Island,  Pub.  Stats.  1882,  c.  182,  §  2;  Hopperv.  Demarest,  21  N. 
J.  L.  525;  Goodrich  v,  Lampert,  10  Conn.  443;  Dennett  v.  Dennett,  40 
N.  H.  500;  Richardson  v.  Wheatland,  7  Met.  169;  Williamson  v.  Wil- 
liamson, 18  Mon.  B.  329;  Moore  v.  Littel,  40  Barb.  488;  3  Wash.  Real 
Prop.  (5th  ed.)  p.  ()57.  See  for  decisions  affecting  this  rule,  Yarnall's 
Appeal,  70  Pa,  St.  342;  Adams  v.  Guerard,  29  Ga.675;  76  Am.  Dec.  624; 
Pierce  v.  Pierce,  14  R.  I.  514 ;  Hawkins  v.  Lee,  22  Tex.  547 ;  Hancock  v. 
Butler,  21  Tex.  804;  Paxson  v.  Lefferts,  3  Rawle,  59;  George  v.  Morgan, 
16  Pa.  St.  95;  Powell  v.  Brandon,  24  Miss.  364;  Ro-s  v.  Adams,  28  N.  J. 
L.  172;  Baker  v.  Scott.  62  111.  86;  Steiner  v.  Kolb,  57  Pa.  St.  123;  Adama 
V.  Ross,  30  N.  J.  L.  512;  82  Am.  Dec.  237 ;  Criswell's  Appeal,  41  Pa.  St. 
290;  Haldeman  v.  Haldeman,  40  Pa.  St.  35;  Halstead  v.  Hall,  60  Md, 
209;  Belslay  I'.  Engel,  107  111.  182;  Price  v.  Taylor,  28  Pa.  St.  102;  70 
Am.  Dec.  105;  Kepple's  Appeal,  53  Pa.  St.  211;  Stump  v.  Jordan,  54 
Md.  619;  Price  v.  Sisson,  13  N.  J.  Eq.  177;  Baker  v.  Scott,  62  111.  86; 
Bannister  v.  Bull,  16  S.  0.  220;  Brislain  v.  Wilson,  63  III.  175;  Clark  v. 
Smith,  49  Md.  106;  Kleppner  v.  Laverty,  70  Pa.  St.  73;  Terrell  v.  Cun- 
ningham, 70  Ala.  100;  May  v.  Ritchie,  65  Ala.  602;  Flint  v.  Steadinan, 
36  Vt.  210;  Oyster  v.  Oyster,  100  Pa.  St.  538;  45  Am.  Rep.  388;  Warner 
V.  Sprigg,  62  Md.  14;  Adams  v.  Adams,  6  Q.  B.  860;  Pybus  v.  Mitford, 
2  Lev.  77;  Webster  v.  Cooper,  14  How.  500;  Quillman  v.  Custer,  57  Pa. 
St.  125;  Doebler's  Appeal,  64  Pa.  St.  17;  Tyler  v.  Moore,  42  Pa.  St.  374; 
Ford  V.  Flint,  40  Vt.  394;  Lees  v.  Mosley,  1  Younge  &.  C.  589;  Green- 
LEEva,  Vol.  n.  —  72 


§  817  nilNCIPLES    OF    CONSTRUCTION.  1133 

to  llieir  heirs  and  assigns."  The  habendum  clause  was  to 
the  grantee,  "and  to  his  lawful  issue,  to  the  only  prosier  use 
of  the  said  grantee,  and  his  lawful  issue  (as  above  men- 
tioned) forever."  The  deed  also  contained  covenants  of 
seisen,  of  quiet  enjoyment,  and  against  encumbrances, 
which  were  each  with  the  grantee,  "and  his  lawful  issue." 
The  court  construed  tlie  deed  as  giving  the  grantee  only 
a  life  estate.'  The  reasoning  by  which  the  court  came  to 
this  conclusion  is  thus  stated  by  Martin,  J:  "The  ele- 
mentary authorities  uniformly  hold  that  the  word  *  heirs' 
is  indispensable  to  the  creation  by  deed  of  an  estate  tail 
or  fee  simple;  though  it  is  otherwise  in  respect  to  a  will. 
This  requirement  is  technical;  but  it  has  always  been  a 
rule  of  property  in  this  State,  and  must  for  manifest 
reasons  be  upheld.  The  contingent  remainder  is  ex- 
pressly limited  to  the  brothers  and  their  heirs.  And  it  is 
plain  that  the  word  'heirs,'  found  in  the  clause  giving  the 
remainder,  cannot  by  construction  be  held  to  limit  the 
estate  granted,  as  is  claimed,  to  Cline's  issue.  Such  a 
transposition  of  the  word  would  ab  initio  frustrate  the  apt 
words  of  the  grant  in  remainder;  for  it  would  be  to  tack 
a  remainder  to  an  unconditional  grant  in  fee  simple.  And 
it  will  also  be  noticed  that  the  word  'heirs'  as  a  correlative 
to  Oline  or  his  issue  is  not  found  in  the  habendum  or 
warranty  clauses,  nor  elsewhere  in  the  deed.  And  it  is 
proper  to  add,  it  is  not  imported  by  reference.  Hence, 
the  estate  granted  is  not  by  the  words  of  grant,  or  by 
anything  within  the  four  corners,  limited  to  Cline  and 
his  heirs,  nor  to  his  issue  and  their  heirs.  But  it  is 
claimed  that  the  particular  estate  was  not  alone  for  Cline's 
life,  but  was  also  for  the  respective  lives  of  the  survivors 
of  his  four  children  who  were  living  at  the  date  of  the 

wood  V.  Roth  well,  5  Man.  &  G.  628 :  Ridgeway  v.  Lamphear,  99  Ind.  251 ; 
Bagndl  v.  Harvey,  4  Barn.  &  0.  610;  Abbott  v.  Jenkins,  10  Seri;.  &  R. 
20G;  Hennessy  v.  Patterson,  85  N.  Y.  91;  Ward  v.  Armory,  1  Curt.  419; 
Jones  V.  Miller,  13  Ind.  337;  Mclntyre  v.  Mclntyre,  16  S.  C.  290;  Ma- 
cumber  V.  Bradley,  28  Conn.  445;  Carter  v.  McMichael,  10  Serg.  &  R. 
429;  George  v.  Morgan,  16  Pa.  St.  95. 
*  Ford  V.  Johnson,  41  Ohio  St.  366. 


1139  PRINCIPLES    OF    CONSTRUCTION.  §  84S 

deed,  in  September,  1824.  As  to  this,  as  well  as  to  a  sug- 
gestion that  might  be  made  of  a  fee  by  implication  spring- 
ing from  the  survival  of  issue,  it  is  sufficient  to  say  that, 
by  the  obvious  intent  and  plan  of  the  instrument,  the 
particular  estate  was  ended  by  the  death  of  Cline,  and 
the  fee  thereupon  reverted,  if  it  did  not  pass  in  remainder 
to  the  brothers.  Consequently  the  estate  granted  was  a 
life  estate  to  Cline  for  his  own  life.  But  the  result  would 
be  the  same  if  the  construction  were  to  him  and  his  four 
children  as  tenants  in  common;  because,  even  if  the  words 
of  grant  are  not  inconsistent  with  a  right  of  survivorship, 
it  is  certain  that  the  right  is  not  given  expressly,  nor,  as 
we  have  seen,  by  implication."^  In  a  case  in  Arkansas,  a 
deed  was  made  to  a  person  *'and  the  heirs  of  her  body  that 
now  are  or  may  hereafter  be  born."  The  deed  provided 
that  neither  the  grantee  nor  "  her  husband,  nor  either  of 
her  children  that  now  are  or  may  hereafter  be  born,  nor 
any  other  person  for  them,  shall  have  any  power  to  sell  said 
land  during  my  natural  life,  or  until  the  youngest  child" 
of  the  grantee,  "now  or  hereafter  born,  shall  arrive  at  full 
age."  The  grantee,  the  court  decided,  took  a  life  estate, 
and  the  remainder  in  fee  upon  her  death  became  vested 
in  her  children  that  had  survived  her,  and  in  the  issue  of 
those  who  had  died,  during  her  lifetime,  per  stirpes.  Dur- 
ing the  life  of  the  mother  the  children  took  nothing  by 
the  deed,  nor  was  the  interest  of  the  children  such  during 
her  life  that  it  could  be  transmitted  to  her  by  their 
death.^ 

§  848.  Construction  against  grantor. — Where  the  lan- 
guage of  the  deed  will  admit  of  two  constructions,  the  one 
less  favorable  to  the  grantor  is  to  be  adopted.'     The  rule 

'  Ford  V.  Johnson,  41  Ohio  St.  366. 

'  Horsley  v.  Hilburn,  44  Ark.  458. 

»  Vance  v.  Fore,  24  Cal.  435;  Hajrer  r.  Spect.  52  Cal.  579;  Dunn  v. 
English,  23  N.  J.  L.  120;  Adarag  v.  Frothingham,  3  Mass.  352;  3  Am. 
Dec.  151;  Mills  v.  Catlin,  22  Vt.  98;  Watson  «.  Boyleton,  5  Mass.  411; 
Middleton  v.  Pritchard,  3  Scam.  (4  111.)  510;  38  Am.  Dec.  112;  Cocheco 
Mfg.  Co  V.  Whittier,  10  N.  H.  305;  Bushnell  v.  Proprietors,  etc.,  31  Conn. 
15U;  Winalow  v.  Patten,  34  Me.  25;  Curriugton  r.  Goddin,  13  Gratt. 


§  848  PRINCIPLES    OF    CONSTRUCTION.  1140 

is  not  modified  by  the  fact  that  the  deed  was  given  under 
an  award  requiring  it.*  "It  is  an  old  principle  of  law  that 
exceptions  in  a  deed  and  every  uncertainty  are  to  be 
taken  favorably  for  the  grantee.'"^  But  this  rule  is  not 
applicable  to  any  case  but  one  of  strict  equivocation, cases 
where  the  language  of  the  deed  is  susceptible  of  two  in- 

5S7;  Charles  River  Bridge  v.  Warren  Brids^e,  11  Peter?,  589;  City  of 
Alton  V.  Illinois  Transportation  Co.,  12  111.  38;  52  Am.  Dec.  479;  Pray  v. 
Briggs,  2  Mill  Const.,  98;  Rung  v.  Shoneberger,  2  Watts,  23;  26  Am. 
Dec.  95;  Foy  v.  Neal,  2  Strob.  156;  Dodge  v.  Walley,  22  Cal.  224;  83 
Am.  Dec.  61 ;  Salmon  v.  Wilson,  41  Cal.  595;  Piper  v.  True,  313  Cal.  606; 
Pike  V.  Munroe,  36  Me.  309;  58  Am.  Dec.  751.  And  see  Sanborn  v. 
Clough,  40  N.  H.  330;  Marshall  v.  Niles,  8  Conn.  369;  Clough  v.  Bow- 
man, 15  N.  H.  504;  Carroll  v.  Norwood,  5  Har.  &  J.  155;  Johnsons. 
McMullan,  1  Strob.  143;  Jackson  v.  Hudson,  3  Johns.  375;  3  Am.  Dec. 
500;  Melvin  v.  Proprietors  of  Locks,  etc.,  5  Met.  15;  38  Am.  Dec.  384; 
Budd  }-.  Brooke,  3  Gill.  198 ;  43  Am.  Dec.  321, 

^  Bushnell  v.  Proprietors,  etc.,  31  Conn.  150.  In  Dunn  v.  English,  23 
N.  J.  L.  126,  the  deed  conveyed  to  the  grantee  two  small  parcels  of  land, 
"together,  also,  with  the  privilege  and  common  use  of  the  wagon  alley 
between  the  houses  of  the  said  English  and  Branin,  and  through  the 
yard  of  the  said  English  to  the  back  stable  lot  of  the  said  Branin,  and 
also  the  further  use  and  privilege  of  a  two  and  a  half  feet  alley,  or  pas- 
sageway, along  and  around  the  Treaton  bank  lot,  to  and  from  the  dwel- 
ling-house lot  of  the  said  Branin  to  the  stable  lot  of  the  said  Branin. 
But  if  at  any  time  hereafter  the  said  dwelling-house  lot,  and  the  said 
Btable  lot  of  the  said  Branin,  above  mentioned,  shall  be  owned  by  differ- 
ent persons,  then  and  in  that  case  the  privilege  and  use  of  the  said  two 
and  a  halt  feet  alley  or  passageway,  and  also  the  said  wagonway  to  the 
said  stable  lot,  shall  cease  and  become  null  and  void,  and  to  revert  again 
to  the  said  Joshua  English,  his  heirs  and  assigns.  Bnt  the  privilege  of 
the  wagonway  between  the  dwellings  to  remain  with  the  front  house." 
The  court  stated  the  only  question  to  be  the  extent  of  the  right  to  the 
use  of  the  alley.  In  the  language  of  the  court :  '  'The  plaintiff  claims  the 
right  to  pass  through  the  alley  between  the  houses  to  a  gateway  leading 
to  his  own  lot,  immediately  in  the  rear  of  his  house.  The  defendant  in- 
sists that,  by  the  terms  of  the  grant,  the  right  of  the  plaintiff  is  limited 
to  the  use  of  so  much  of  the  alley  as  lies  immediately  between  the  houses ; 
that  the  passageway  claimed  by  the  plaintiff  beyond  the  line  of  the  rear 
of  the  house  is  consequently  extra  viam,  and  that  he  is  entitled  to  no 
damages  for  its  obstruction."  The  court  held  that  the  construction  put 
npon  the  language  of  the  instrument  by  the  plaintiff  was  the  true  one, 
"because  a  grant  is  always  to  be  construed,  in  cases  of  doubt,  most 
strongly  against  the  grantor,  and  most  beneficially  for  the  grantee." 

»  Jackson  v.  Gardner,  8  Johns.  394,  406.  See  Grubb  v.  Grubb,  101  Pa. 
St.  11. 


1141  PRINCIPLES    OF    CONSTRUCTION.  §   848 

terpretatioiis.^  And  it  has  no  application  where  the 
parties  claim  under  the  same  deed;'"  nor  to  grants  of  the 
sovereign.^  But  a  construction  slioukl,  if  possible,  be 
adopted  that  will  render  all  parts  of  the  deed  operative.* 
It  is  said  by  an  English  author:  "This  rule  is  often  mis- 
understood; it  does  not  mean  that  the  words  are  to  be 

1  Adams  v.  Warner,  23  Vt.  395,  412  •  Abbie  v.  Huntley,  56  Vt.  454, 
458. 

*  Coleman  v.  Beach,  97  N.  Y,  545. 

'  Willion  V.  Berkley,  Plow.  243;  Jackson  v.  Reeves,  3  Caines,  293. 
And  see  Stourbridge  Can.  Co.  v.  Wheeley,  2  Barn.  &  Adol.  792;  Leeds  & 
Liverpool  Can.  Co.  v.  Hustler,  1  Barn.  &  C.  424;  Biakemore  v.  Glamor- 
ganshire Can.  Nav.,  1  Mylne  &  K.  154;  Parker  v.  Great  Western  Ry. 
Co.,  7  Man.  &  G.  253;  Barrett  v.  Stockton  etc.  Ry.  Co.,  2  Man.  &  G.  134; 
Priestly  v.  Foulds,  2  Man.  &  G.  194;  Mohawk  Bridge  Co.  v.  Utica  &  Sch. 
R.  R.  Co.,  6  Paige,  554. 

*  Waterman  v.  Andrews,  14  R.  I.  589;  AYatters  v.  Bredin,  70  Pa.  St. 
238 ;  Coleman  v.  Bush,  97  N.  Y.  545.  See  Bent  v.  Rodgers,  137  Mass.  192 ; 
Presbrey  v.  Presbrey,  13  Allen,  283;  Shultz  v.  Young,  3  Ired.  385;  40 
Am.  Dec.  413;  Haven  v.  Dale,  18  Cal.  359.  In  Waterman  w.  Andrews, 
supra,  Matte.son,  J.,  in  delivering  the  opinion  of  the  court,  says:  "It  is 
laid  down  as  a  rule  of  construction  that  where  there  are  two  clauses  in  a 
deed  which  are  so  repugnant  that  they  cannot  stand  together,  the  former 
is  to  prevail  over  the  latter,  unless  there  be  some  special  reason  to  the 
contrary :  Plow.  541 ;  1  Inst.  112  6;  Shep.  Touch.  88 ;  Broom's  Legal 
Maxims,  *o8J,  But  as  Judge  Metcalf  remarks  in  23  American  Jurist, 
277,  the  rule  has  very  little  operation  in  modern  times,  a  reason  to  the 
contrary  being  almost  always  found.  Nowadays,  the  rules  of  construc- 
tion applied  in  cases  of  repugnancy  give  effect  to  everj'  part  of  a  deed, 
when  consistent  with  the  rules  of  law  and  the  intention  of  the  party. 
When  this  is  impossible,  the  part  which  is  repugnant  to  the  intention  is 
rejected.  And  wlienever  the  language  used  is  susceptible  of  more  than 
one  interpretation,  the  courts  will  look  at  the  circumstances  existing  at 
the  time  of  the  transaction,  such  as  the  situation  of  the  parties,  the  sub- 
ject matter  of  the  conveyance,  the  acts  of  the  parties  contemiioraneous 
with  and  subsequent  to  the  deed.  To  this  extent  extraneous  evidence 
is  admissible  to, aid  in  the  constructicn  of  written  contracts:  Wilson  v. 
Troup,  2  Cowen,  195;  14  Am.  Dec.  458;  Parkhurst  v.  Smith,  Willes,  327, 
332;  Bradley  v.  The  Washington,  Alexandria  &  Georgetown  Steam 
Packet  Co.,  13  Peters,  89,  lOU-103;  Winnipiseogee  Lake  Cotton  and 
Woolen  Co.  v.  Perley,  46  N.  H.  83,  101;  Bell  v.  Woodward,  46  N.  H.  315, 
331;  Gibson  v.  Tyson,  5  Watts,  34,  41.  If,  after  all,  the  interpretation 
to  be  given  to  the  deed  remains  doubtful,  the  court  will  adopt  the  con- 
struction which  is  most  favoraijlo  to  the  grantee,  because  it  is  the  fault 
of  the  grantor  that  he  has  left  the  matter  in  duul)t,  and  he  ought  not  to 
be  permitted  to  take  advantage  of  a  dilliculty  which  he  has  himself 
created."     See  Gilbert  v.  James,  86  N.  C.  244. 


§§  819,  849  a     PRiNCirLES  of  construction.  1142 

twistod  out  of  their  proper  meanings,  but  only  that  where 
the  words  may  properly  bear  two  meanings,  and  where, 
after  we  have  applied  evidence,  whether  extrinsic  or  in- 
trinsic, admissible  under  the  foregoing  rules,  we  are  still 
unable  to  determine  in  which  of  these  meanings  they  were 
used,  we  must  take  them  in  the  meaning  most  disadvan- 
tageous to  the  person  who  uses  them,  unless  the  adoption 
of  tliat  meaning  would  work  wrong." ^  Where  a  jury  is 
convinced  of  a  spoliation,  they  should  infer  everything 
in  favor  of  the  deed  and  against  the  spoiler.'* 

§  840.  Divers  estates. — From  the  rule  stated  in  the 
preceding  section,  that  a  deed  will  be  construed  most 
strongly  against  the  grantor,  it  results  that  the  deed  will 
be  construed  to  convey  to  the  grantee  whatever  interest 
and  estate  the  grantor  may  have  in  the  land  at  the  time 
of  the  execution  of  the  deed,  unless  the  deed  shows  that 
the  grantor's  intention  was  to  pass  a  less  estate.^  If  a 
person  has  divers  estates  in  land,  as,  for  instance,  for  life 
and  in  fee,  any  charge  or  grant  made  by  him  shall  bind 
the  whole  estate.* 

§  841>  a.     Deed  of  executor  passing-  individual  interest. 

Where  a  person  has  an  individual  interest  in  land,  and  is 
also  authorized  as  executor  or  in  some  other  representa- 
tive capacity  to  convey  such  land,  a  deed  made  by  him, 
purporting  to  convey  a  complete  title,  but  not  referring 
to  his  representative  character  or  to  a  power  to  sell  in  a 
will,  conveys  his  individual  interest  only.^  In  a  case 
where  this  rule  was  enforced,  Mr.  Chief  Justice  Scates 
remarked:  "We  must  read,  interpret,  construe,  and  un- 
derstaud  the  deed,  by  and  from  its  language  and  terms."* 
Where  there  is  no  evidence  to  the  contrary  in  a  deed,  it 

'  Elphinstone,  Interpretation  of  Deeds,  94. 
»  Dielil  V.  Emig,  65  Pa.  St.  320. 

•  Stockett  V.  Goodman,  47  Md.  54. 

•  Stockett  V.  Goodman,  47  Md.  54, 

'  Cohea  v.  Hemingway,  71  Miss.  222;  42  Am,  St.  Eep.  449. 

•  In  Davenport  v.  Young,  16  111.  548;  63  Am.  Dec.  320. 


1143  PRINCIPLES  OP  CONSTRUCTION.         §  850 

will  be  presumed  to  operate  on  the  grantor's  own  right,  if 
it  appear  that  besides  his  own  he  has  one  in  a  representa- 
tive character.^ 

§  850.      Construction  favorable  to  operation  of  deed. — 

A  deed  should  be  considered  as  intended  to  have  some 
effect,  and  a  construction  making  it  operative  will  be  pre- 
ferred to  one  rendering  it  void.  ''Some  effect  will,  if 
possible,  be  given  to  the  instrument,  for  it  will  not  be  in- 
tended that  the  parties  meant  it  to  be  a  nullity."^  A 
mortgage  described  the  land  affected  as  "  lot  four  of 
block  one"  of  a  certain  farm,  "  being  now  used  and  oc- 
cupied with  the  steam  sawmill  thereon,  by  the  parties 
of  the  first  part."  This  portion  of  the  farm  had  been 
platted  into  four  lots  or  blocks,  which  had  not  been  sub- 
divided. The  mill  was  situated  on  the  one  which  was 
numbered  four  on  the  plat,  while  the  others  were  fenced 
in,  used,  and  occupied  with  the  mill.  The  court  held 
that  the  words  "of  block  one"  should  be  rejected,  and 
tlie  mortgage  was  held  a  valid  lien  upon  lot  four.  Said 
Mr.  Justice  Christiancy:  *' It  is  a  rule  as  well  founded, 
in  reason  as  it  is  supported  by  authority,  that  deeds  and 
other  written  instruments  should  be  so  construed  as  to 
render  them  valid  and  effectual,  rather  than  void,  ut  res 
viagis  valeat  quam  pereat.  But  to  construe  this  mortgage 
so  as  to  make  the  tracts  in  question  blocks  instead  of  lots, 
would  be  to  violate  the  plain  meaning  of  words  and  the 
clear  intent  of  the  parties,  and  to  ignore  the  whole  subject 
matter  in  order  to  lay  a  foundation  for  violating  this  car- 
dinal rule  of  construction."  '^  Only  unavoidable  necessity 
should  permit  a  construction  to  be  placed  upon  a  deed 
which  requires  the   rejection  of  an  entire  clause.*     If  a 

1  Coffing  V.  Taylor,  16  111.  474. 

»  Gano  V.  Aldridge,  27  Ind.  294;  Hoffman  v.  Mackall,  5  Ohio  St.  124; 
64  Am.  Dec.  637;  Anderson  v.  Baughman,  7  Mich.  69;  74  Am.  Dec.  699. 
See  Waterman  v.  An<lrew3,  14  R.  I.  589;  Piper  v.  True,  36  Cal.  606. 

»  Anderson  v.  Baughman,  7  Mich.  69,  77 ;  74  Am.  Dec.  699. 
■*  City  of  Alton  v.  Illinois  Transportation  Co.,  12  HI.  38;  52  Am.  Dec. 
479;  Rigirin  v.  Love,  72  111.  556.     See  Pool  v.  Blakie,  53  111.  495;  Cole- 
man V.  Beach,  97  N.  Y.  545. 


§  850  PRINCIPLES    OF    CONSTRUCTION.  1144 

aocnl  conveys  land  to  a  married  woman  without  defining 
the  estate,  but  in  the  habendum  clause  the  estate  is  limited 
to  her  during  her  natural  life,  with  a  remainder  to  her 
husbancl,  who  is  mentioned  by  name,  and,  in  case  he 
should  die  before  his  wife,  then  to  his  heirs  at  law,  a  life 
estate  in  the  wife  is  created,  and  the  husband  takes  the 
remainder  in  fee  simple.'  "The  real  intention  of  the 
framer  of  the  deed,  the  written  declaration  of  whose  mind 
it  is  always  considered  to  be,  is  the  end  and  object  to  the 
discovery  and  effectuating  of  which  all  the  rules  of  con- 
struction,   properly    so    called,    are    uniformly    directed. 

'  Rigt^in  V.  Love,  72  111.  553.  Reservations  are  considered  as  the  lan- 
guage of  the  party  for  whose  benefit  they  are  made :  House  v.  Palmer,  9 
Ga.  497 ;  Cardigan  v.  Armitage,  2  Barn.  &  C.  197 ;  Jackson  v.  Lawrence, 
11  Johns.  191;  Bullen  v.  Denning,  5  Barn.  &  C.  842.  And  see,  Palmer 
V.  AVarren  Ins.  Co.,  1  Story,  360;  Blackett  v.  Royal  Exch.  Assn.  Co.,  2 
Cromp.  &  J.  244;  Hill  v.  Grange,  Plow.  171;  Donnell  v.  Columbian  Ins. 
Co.,  2  Sum.  366,  381;  Co.  Litt.  42  a.  The  language  of  the  acknowledg- 
ment of  the  payment  of  the  consideration  in  a  deed  was:  "I,  the  said 
grantor,  for  and  in  consideration  of  the  sum  of  one  thousand  dollars,  in 
hand  before  the  ensealing  hereof,  well  and  tiuly  paid  by  Wanton  Dur- 
fee,  of  the  city  and  county  of  Providence,  subject  to  the  life-estate  of  Mary 
L.  Greene  and  Almira  Durfee,  both  of  Warwick,  county  of  Kent,  and  Susan 
H.  Greene,  of  the  city  and  county  of  Providence,  who  jointly,  or  the  survivors 
of  them,  shall  be  entitled  to  their  fourths  of  the  annual  income  of  said  estate, 
the  other  fourth  of  said  income  to  be  expended  on  said  estate  in  betterments, 
the  receipt  whereof  I  do  hereby  acknowledge,  and  am  therewith  fully 
satisfied,  contented,  and  paid ;  and  thereof,  and  of  every  part  and  parcel 
thereof,  do  exonerate,  acquit,  and  discharge  the  said  Wanton  Durfee, 
Mary  L.  Greene,  Almira  Durfee,  and  Susan  H.  Greene,  their  heirs,  execu- 
tors, and  administrators  forever."  Mr.  Chief  Justice  Durfee,  in  deliver- 
ing the  opinion  of  the  court,  said  :  '*  The  words  in  italics  seemed  to  have 
been  designed  either  to  qualify  the  estate  conveyed  by  the  succeeding 
words,  or  else  to  recognize  or  refer  to  some  qualification  otherwise  exist- 
ing or  made,  or  to  be  made  by  some  other  instrument.  We  think  it  is 
clear  that  they  cannot  qualify  the  estate  conveyed,  because  they  are 
ineffectual  in  themselves  to  create,  and  indeed  do  not  purport  to  create, 
any  estate,  and  because  the  succeeding  words,  being  the  operative  words 
of  the  deed,  make  no  reference  to  them,  but  convey  the  estate  described 
absolutely  and  immediately  to  all  the  grantees  in  fee  simple.  The  itali- 
cized words,  in  fact,  do  not  affect  in  any  way  the  construction  of  the 
deed.  If  they  are  of  any  use  in  the  deed,  they  are  of  use  only  as  notice 
to  put  people  on  inquiry,  in  case  the  estate  is  qualified  by  some  other 
in.-trument,  or  by  equitable  intendment,  or  as  evidence  of  some  purpose 
etill  unaccomplished"  :  Durfee,  Petitioners,  14  R.  I.  47. 


1145  PRINCIPLES    OF    CONSTRUCTION.  §  850 

When  technical  words  or  phrases  are  made  use  of,  the 
strong  presumption  is,  that  the  party  intended  to  use 
them  according  to  their  correct  technical  meaning;  but 
this  is  not  conclusive  evidence  that  such  was'  his  real 
meaning.  If  the  technical  meaning  is  found  in  the  par- 
ticular case  to  be  an  erroneous  guide  to  the  real  one,  lead- 
ing to  a  meaning  contrary  to  what  the  party  intended  to 
convey  by  it,  it  ceases  to  answer  its  purpose.  The  deed 
may  be  drawn  inartificially,  from  ignorance,  or  inadvert- 
ence, or  other  causes;  but  still,  if  there  is  enough  clearly 
to  convey  information  as  to  the  real  meaning,  the  object 
is  attained.  The  mind  is  with  certainty  discovered,  and 
being  known  must  be  the  guide,  or  the  act  and  deed 
would  not  be  the  act  and  deed  of  the  party,  but  of  the 
court.  Because  the  words  which  are  the  signs  of  the 
ideas  of  the  persons  using  them  are  in  general,  and  in 
the  correct  use  of  them,  the  signs  of  ideas,  different  from 
those  of  which  in  the  particular  case,  they  are  found  less 
technically  and  correctly,  but  with  equal  certainty  to  be 
the  signs;  can  it  follow  that  they  are  to  be  construed, 
to  represent  the  ideas  of  which  they  are  known  not  to  be 
the  signs,  in  preference  to  those  of  which  they  appear 
to  be  the  signs?  Where  is  the  authority  that  compels 
the  court  to  go  this  length  in  its  adherence  to  technical 
meaning?  The  contrary  has  been  long  and  universally 
established  to  be  the  rule  by  the  highest  authorities  from 
the  earliest  period,  without  a  single  one  to  the  contrary. 
Many  cases  may  doubtless  be  found  in  which  technical 
meaning  has  been  allowed  to  prevail,  notwithstanding 
some  appearance  of  a  contrary  intent;  but  this  has  been 
where  the  manifestation  of  intent  was  not  deemed  suffi- 
cient to  get  over  the  presumption  in  favor  of  legal  con- 
struction. The  paramount  regard  to  be  had  in  a  case 
circumstanced  as  the  present,  to  the  meaning  and  inten- 
tion of  the  grantor,  in  preference  to  technical  meaning, 
is  the  settled  rule  of  construction.  If  the  subject  of  the 
instrument  on  which  the  question  arises  be  one  that  is 
not  matter  of  law  (over  which  intention  has  no  control), 


§  850  PRINCIPLES    OF    CONSTRUCTION.  1146 

but  depends  wholly  on  the  will  and  act  of  the  party,  such 
as  tlie  appointment  by  the  donor  in  a  deed  of  gift  of  his 
own  donee;  if  the  words  to  be  construed  are  not  words 
of  limitation  (in  which  a  stricter  attention  to  forms  may 
be  required,  especially  in  deeds),  but  words  of  purchase 
and  description,  made  use  of  to  designate  the  person  of 
the  first  taker;  in  such  case,  if  the  meaning  and  inten- 
tion of  the  grantor  be  clearly  manifested  on  the  face  of 
the  instrument,  as  to  the  person  or  character  intended  to 
be  the  object  of  grant,  and  if  the  words  that  he  has  made 
use  of  to  convey  his  meaning  will  admit  of  an  interpre- 
tation conformable  to  it,  though  contrary  to  their  correct 
technical  sense,  there  is  no  case  or  dictum  to  be  found 
which  requires  the  court  to  adopt  the  technical  sense  in 
opposition  to  the  actual  meaning  of  the  party;  on  the 
contrar}^  the  authorities  uniformly  demand,  the  prefer- 
ence to  be  given  to  intent,  over  technical  import  and 
form."  *  But  under  the  strict  rules  applicable  to  the  exe- 
cution of  deeds  by  attorneys  in  fact,  a  deed  may  be  in- 
operative notwithstanding  the  intention  of  the  parties, 
because  it  fails  by  a  proper  signature  to  bind  the  princi- 
pal. A  strong  case  illustrating  the  strictness  of  the  early 
cases  in  this  regard,  is  one  where  a  party  covenanted  to 
sell  and  convey  to  another  certain  lots  of  land,  and  on 
the  payment  of  the  sum  agreed  upon  to  execute  to  him 
a  good  and  sufficient  deed.  The  agreement  to  sell  and 
convey  stated  that  it  was  the  agreement  of  the  principal 
by  his  attorney  in  fact,  and  that  the  principal  covenanted 
to  sell  and  convey,  but  the  testimonium  clause  stated  that 
the  attorney,  "  as  attorney  of  the  party  of  the  first  part, 
and  the  said  party  of  the  second  part,  have  hereunto  set 

^  Plumer,  M.  R,,  in  Cholmondeley  ?;.  Clinton,  2  Jacob  &  W.  91.  An 
instrument  which  states  that  "  I,  A  B,  warrant  and  defend  unto  0  D, 
her  heirs  and  assigns  forever,  the  receipt  of  which  is  hereby  acknowl- 
edged, the  following  real  estate,  on  this  condition:  I,  the  said  A  B,  is  to 
have  and  hold  full  possession  of  said  lands  during  my  natural  life,  and 
to  hold  appurtenances  unto  her,  her  heirs,  and  assigns  forever,"  al- 
though it  may  be  signed,  sealed,  and  acknowledged,  cannot  operate  as  an 
effectual  transfer,  because  it  contains  no  words  of  grant:  Hummelmaa 
V.  Mounts,  87  Ind.  178. 


1147  PRINCIPLES    OF    CONSTRUCTION.  §  850  a 

their  hands  and  seals,"  etc.  The  court  decided  that  as 
the  attorney  had  only  affixed  his  own  name  the  covenant 
was  void/ 

§  850  a.     Merger  of  contract  to  convey  in  deed. — The 

rule  applicahle  to  all  contracts,  that  prior  stipulations  are 
merged  in  the  final  and  formal  contract  executed  by  the 
parties,  applies,  of  course,  to  a  deed  based  upon  a  contract 
to  convey.  When  a  deed  is  delivered  and  accepted  as  per- 
formance of  a  contract  to  convey,  the  contract  is  merged 
in  the  deed.  Though  the  terras  of  the  deed  may  vary 
from  those  contained  in  the  contract,  still  the  deed  must 
be  looked  to  alone  to  determine  the  rights  of  the  parties, 
"No  rule  of  law  is  better  settled  than  that  where  a  deed 
has  been  executed  and  accepted  as  performance  of  an  exec- 
utory contract  to  convey  real  estate,  the  contract  is  func- 
tus officio,  and  the  rights  of  the  parties  rest  thereafter  solely 
on  the  deed."  ^  A  vendor,  in  a  contract  to  sell,  agreed  to 
convey  a  good  title,  and  subsequently  executed  a  deed, 
which  the  vendee  accepted  in  performance  of  the  con- 
tract, knowing  when  he  accepted  the  deed  that  the  title  to 
a  part  of  the  land  was  in  the  United  States.  It  was  de- 
cided that  the  previous  contract  was  merged  in  the  deed, 
and  that  the  rights  of  the  vendee  must  depend  on  the 
deed  and  not  on  the  contract.^  Where  a  lease  is  executed 
containing  certain  conditions,  and  the  lessor,  before  its 
expiration,  conveys  the  hind  by  deed  to  the  lessee,  reciting 
the  lease,  but  omitting  all  reference  to  the  conditions,  the 
lease  is  merged  in  the  conveyance,  and  the  title  of  the 
grantee  is  not  encumbered  with  the  conditions  contained 
in  the  lease.*  The  acceptance  by  the  vendee  of  a  deed  is 
considered  as  a  full  compliance  with  the  contract  to  con- 

^  Towneend  v.  Corning,  23  Wend.  436,  and  cases  cited.  An  interest- 
ing discussion  as  to  the  signature  of  deeds  executed  by  attorneys  in  fact 
will  be  found  in  Doe  v.  Doe,  3  Am.  Jur.  52,  77.  See,  for  a  discussion  of 
signature  Vjy  attorneys  in  fact,  vol  1,  §§  377-381. 

»  Slocum  V.  Bracy,  55  Minn.  249;  43  Am.  St.  Rep.  499,  per  Mitchell,  J. 

*  Bryan  v.  Swain,  5H  Cal.  616. 

*  St.  riiilip's  Church  v.  Ziou  i'resbylerian  Church,  23  S.  0.  297. 


§  850  a  PRINCIPLES    OP    CONSTRUCTION.  1148 

vov,  and  as  annulling  it.*  When  the  transaction  has  been 
fullv  closed,  no  allowance  can  be  made  because  the  quan- 
tity of  land  may  be  greater  or  less  than  that  provided  for 
in  the  prior  contract.^  So,  it  has  been  held,  that  if  in  the 
contract  of  sale  the  vendor  reserves  the  timber  growing 
on  the  land  to  be  conveyed,  and  stipulates  for  the  right 
to  remove  it  within  a  specified  time,  but  within  the  time 
so  limited  executes  a  warranty  deed  to  the  vendee,  but 
fails  to  provide  for  the  reservation,  the  vendee  obtains 
the  right  to  the  timber.^  An  oral  agreement,  made  prior 
to  the  sale,  to  secure  an  outstanding  title  is  merged  in  the 
covenants  of  the  deed.*  A  deed  also  merges  all  repre- 
sentations of  freedom  from  encumbrance  in  the  absence  of 
fraud  and  of  express  or  implied  covenants.^  The  accep- 
tance of  the  deed  is,  in  the  absence  of  fraud  or  mistake, 
considered  the  consummation  of  the  contract  between  the 
parties,  and  therefore  conclusive  evidence  of  their  agree- 
ment.^ 

*  Carter  v.  Beck,  40  Ala.  599. 

*  Cronister  v.  Cronister,  1  Watts  &  S.  442. 

»  Clifton  V.  Jackson  Iron  Co.,  74  Mich.  183;  16  Am.  St.  Rep.  621. 
Said  the  court  per  Campbell,  J:  "  Had  no  deed  been  made,  it  is  agreed 
that  the  reservation  would  have  prevailed.  But  a  previous  contract  can- 
not contradict  or  control  the  operation  of  a  deed.  It  was  competent  for 
defendant  to  relinquish  any  contract  reservation,  and  a  deed  which  grants 
and  warrants  without  any  reservation  has  that  effect.  We  do  not  hold 
that  if  the  deed  were  so  made  by  some  mistake  within  the  cognizance  of 
equity,  the  mistake  might  not  be  corrected.  Neither  need  we  consider 
whether,  after  such  a  deed,,  there  might  not  be  such  dealings  as  to  render 
Buch  timber  cutting  lawful  by  license,  express  or  implied.  In  this  case 
there  was  no  testimony  tending  to  show  that  the  deed  was  not  supposed 
and  intended  to  close  uj)  all  the  rights  of  the  parties." 

*  Coleman  v.  Hart,  25  Ind.  256. 

*  Fritz  V.  McGili,  31  Minn.  536.  See  for  other  cases  relating  to  the 
particular  circumstances  where  this  rule  has  been  enforced.  Carter  v. 
Beck,  40  Ala.  599  ;  Gibson  v.  Richart,  83  Ind.  313;  Davenport  v.  Whisler, 
46  Iowa,  287;  Jones  v.  Wood,  16  Pa.  St.  25;  Frederick  v.  Youngblood,  19 
Ala.  680;  54  Am.  Dec.  209;  Houghtaling  v.  Davis,  10  Johns.  2>»7 ;  Davis 
V.  Clark,  47  N.  J.  L.  338;  Timms  v.  Shannon,  19  Md.  296;  81  Am.  Dec. 
632;  Kerr  v.  Calvit,  Walker,  115;  12  Am.  Dec.  537;  Williams  v.  Hatha- 
way, 19  Pick.  387 ;  Howes  v.  Barker,  3  Johns.  506;  3  Am.  Dec.  526;  Hunt 
V.  Amidon,  4  Hill,  345 ;  40  Am.  Dec.  283 ;  Shontz  v.  Brown,  27  Pa.  Si.  123. 

*  Jones  V.  Wood,  16  Pa.  St.  25,  and  cases  cited  under  the  various  notes 
to  this  secliou.     But  in  Houghtaling  v.  Lewis,  10  Johns.  298,  the  court 


1149  PRIXCirLES    OF    COXSTRUCTION.  §  850  b 

§  850  b.  stipulation  surviving^  the  deed. — There  may 
be  cases  wliere  the  stipulation  instead  of  becoming  merged 
in  the  deed,  survives  it  and  confers  an  independent  cause 
of  action.  Still,  such  cases  come  very  closely  to  the 
border  line  of  contradicting  the  general  rule  stated  in  the 
preceding  section.  A  case  where  such  stipulation  is 
clearly  not  merged  in  the  deed  is  that  of  a  parol  contract 
made  by  the  vendor  to  refund  the  purchase  money  on 
failure  of  the  vendee  to  acquire  under  the  deed  a  good 
title  to  the  property  sold.  Such  an  agreement  is  for  in- 
demnity against  the  consequences  of  the  taking  of  the 
title  that  the  deed  may  convey,  and  is  therefore  independ- 
ent of  the  deed.^  So  it  has  been  held,  that  if  the  grantor  in 
a  warranty  deed  promises  to  indemnify  the  grantee  for  any 
improvements  that  he  may  make  in  case  the  title  should 
prove  worthless,  his  promise  is  enforceable."    The  purpose 

eay:  "Articles  of  agreement  for  the  conveyance  of  land  are,  in  their 
nature,  executory,  and  the  acceptance  of  a  deed,  in  pursuance  thereof, 
is  to  be  deemed,  prima  facie,  an  execution  of  the  contract,  and  the  agree- 
ment thereby  becomes  void,  and  of  no  further  effect.  Parties  may,  no 
doul)t,  enter  into  covenants  collateral  to  the  deed,  or  cases  may  be  sup- 
posed when  the  deed  would  be  deemed  only  a  part  execution  of  the  con- 
tract, for  the  provisions  in  the  two  instruments  clearly  manifested  such 
to  have  been  the  intention  of  the  parties.  But  the  prima  facie  presump- 
tion of  law  arising  from  the  acceptance  of  a  deed,  is  that  it  is  an  exe- 
cution of  the  whole  contract;  and  the  rights  and  remedies  of  the  parties, 
in  relation  to  such  contract,  are  to  be  determined  by  such  deed,  and  the 
original  agreement  becomes  null  and  void."  But  inasmuch  as  in  that 
case  the  court  held  that  the  proof  was  conclusive  that  the  deed  was  ac- 
cepted in  full  satisfaction  of  the  agreement,  the  langua<);e  quoted  can 
scarcely  be  taken  as  making  the  decision  an  exception  to  the  rule  stated 
in  the  text.  It  was  iield  in  Speed's  Executors  v.  Hann,  1  T.  B.  Mon.  16; 
15  Am.  Dec.  78,  in  conflict  with  the  general  rule,  that  articles  of  agree- 
ment did  not  become  merged  in  a  deed  executed  subsequently.  Atten- 
tion should  also  be  called  to  the  case  of  Donlon  v.  Evans,  40  Minn.  501, 
but  this  case  is  explained  and  distinguished  in  the  later  decision  by  the 
flame  court  of  Slocum  v.  Brady,  55  Minn.  249;  43  Am.  St.  Rep.  499. 
See,  also.  Porter  v.  Noyes,  2  Greenl.  22 ;  11  Am.  Dec.  30.  Parol  evidence 
is  inadmissible  to  show  conversations  between  the  parties  prior  to  the 
execution  of  the  deed :  Smith  v.  Fitzgerald,  59  Vt.  451 ;  9  Atl.  Rep.  604. 
See,  also,  Carr  v.  Hays,  110  Ind.  408;  11  N.  E.  Rep.  25. 

^  Close  V.  Zell,  141  Pa.  St.  3H0;  23  Am.  St.  Rep.  296. 

'  Richardson  v.  Gosser,  26  Pa.  St.  335.  In  answer  to  the  argument 
that  the  contract  concerning  improvemente  became  merged  in  the  deed. 


§  S50  C  PRINCIPLES    OF    CONSTRUCTION.  1150 

for  wlncli  a  deed  was  executed  may  be  shown.  Tims,  where 
a  raih-oad  company  represented  that  a  right  of  way  wa3 
designed  for  the  main  line  and  not  for  sidetracks,  and 
the  right  of  way  is  subsequently  used  for  sidetrack  pur- 
poses, the  purpose  for  which  the  deed  was  executed  may 
be  shown  by  parol  evidence.  In  such  a  case,  however, 
its  use  will  not  be  enjoined,  but  the  grantor  may  recover 
damages  for  any  excessive  injury  sustained  over  that 
which  would  arise  from  the  use'  represented.^  Where,  as 
a  part  of  the  consideration  of  the  sale,  a  parol  agreement 
is  made  restricting  the  use  of  the  land  in  some  particular 
for  a  specified  time,  it  is  not  merged  in  the  deed.  The 
title  is  not  affected  by  it,  and  such  an  agreement  may  be 
proven  by  parol  evidence.^ 

§  850  c.  Deed  correcting-  prior  deed. — The  rule  pre- 
vailing with  reference  to  contracts  to  convey,  that  all  prior 
stipulations  of  the  parties  are  merged  in  the  deed  finally 
delivered  and  accepted,  also  prevails  where  a  second  deed 
has  been  executed  as  a  substitute  for,  and  a  correction  of, 
a  prior  deed.'  If  the  deed  delivered  as  a  substitute  omits 
lands  contained  in  the  prior  conveyance,  the  grantee  and 
his  heirs  are  estopped  from  claiming  them.*  Where  a 
subsequent  deed  has  been  executed  in  place  of  a  prior 
deed  misdescribing  the  land  intended  to  be  conveyed,  the 
possession  by  the  grantor  of  the  land  first  conveyed  is 

the  court  said:  "But  to  us  it  appears  that  the  contract  on  which  this 
suit  is  founded  has  no  such  relation  to  the  deed  referred  to.  It  does  not 
concern  the  sale  or  the  transfer  of  the  title.  It  is  a  promise  to  do  another 
thing."  For  other  cases  on  the  same  point  see  Drinker  v.  Byers,  2 
Penr,  &  W.  528;  Anderson  v.  Washabaugh,  43  Pa.  St.  115;  Robinson  v. 
Bakewell,  25  Pa.  St.  424;  Brown  v.  Moorhead,  8  S.  &  K.  5ti9;  Walker  v. 
France,  112  Pa.  St.  203;  Frederick  v.  Campbell,  13  S.  &  R.  136;  Cox 
V.  Henry,  32  Pa.  St.  18. 

1  Donisthori)e  v.  Fremont  etc.  R.  R.  Co.,  30  Neb.  142;  27  Am.  St.  Rep. 
387. 

»  Hall  V.  Solomon,  61  Conn.  476;  29  Am.  St.  Rep.  218. 

*  Chloupek  V.  Perotka,  89  Wis.  551;  46  Am.  St.  Rep.  858;  Emeric  v. 
Alvarado,  64  Cal.  529.  And  see  Hutchinson  v.  Chicago  etc.  Ry.  Co.,  41 
Wis.  541. 

*  Chloupek  V.  Perotka,  89  Wis.  551 ;  46  Am,  St.  Rep.  858. 


1151  PRINCIPLES    OF    CONSTRUCTION.  §  851 

adverse  to  the  grantees.^  Tf  a  grantee  accepts  a  deed 
of  correction  in  lieu  of  a  prior  deed  executed  by  the 
grantor,  and  the  grantee  sells  the  land  conveyed  to  him 
by  the  subsequent  deed,  he  is  estopped  from  claiming 
title  to  the  land  conveyed  by  the  prior  deed.  His  accept- 
ance of  the  second  deed  constitutes  an  election  to  take 
the  land  conveyed  by  the  corrected  deed,  and  operates  as  a 
relinquishment  of  title  to  the  land  conveyed  by  the  first 
deed,  as  one  who  accepts  the  benefits  of  a  conveyance 
must  adopt  the  whole  of  it.^ 

§  851.  Contemporaneous  exposition. — A  deed  should 
receive  a  fair  and  reasonable  construction  which  will  ef- 
fectuate the  intention  of  the  parties,  and  a  contemporane- 
ous exposition  of  the  deed  is  always  entitled  to  the  greatest 
consideration.^  Unless  a  contrary  intent  is  manifest,  a 
deed  should  be  construed  in  all  its  parts  with  respect  to 
the  actual,  rightful  state  of  the  property  at  the  time  at 
which  the  deed  is  executed.*  A  deed  will  not  be  declared 
void  for  uncertainty  until  it  has  been  examined  in  tlie 
light  of  contemporaneous  facts.  When  from  these  facts 
a  clear  intention  can  be  gathered,  and  the  words  of  the 
instrument  by  fair  interpretation  are  susceptible  of  a  con- 
struction to  uphold  such  intention,  the  words  will  be  so 
construed,  and  the  instrument  enforced.^  Where  a  deed 
purporting  to  convey  a  strip  of  land  of  a  specified  width 
along  a  line  already  designated  does  not  give  the  lateral 

1  Fox  V.  Windes,  127  Mo.  502;  48  Am.  St.  Rep.  G48. 

»  Fox  V.  Windes,  127  Mo.  502;  48  Am.  St.  Rep.  648. 

'  Connery  v.  Brooke,  73  Pa.  St.  80.  See  Winnipiseogee  v.  Perley,  44 
N.  H.  83;  Pntzel  v.  Van  Brunt,  40  N.  Y.  Sup.  Ct.  501;  Haniin  v.  San 
Francisco,  17  Fed.  Rep.  119 ;  Stone  v.  Clark,  1  Met.  378 ;  35  Am.  Dec.  370. 

*  Pollard  t;.  Maddox,  28  Ala.  325;  Richardson  «.  Palmer,  38  N.  H.  218 
Dunklee  v.  Wilton  R.  R.  Co.,  24  N.  H.  489;  Moore  v.  Griffin,  22  Me.  350 
Abbott  V.  Abbott,  51  Me.  581;  Commonwealth  v.  Roxbury,  9  Gray,  493 
Stanley  v.  Green,  12  Cal.  148.  And  see  Adams  v.  Frothingham,  3  Mass. 
852;  3  Am.  Dec.  151 ;  Lane  v.  Thompson,  43  N.  N.  324 ;  Rider  v.  Tliomp- 
Bon,  23  Me.  244;  Karmuller  v.  Krotz,  18  Iowa,  352;  Commonwealth  v. 
Roxbury,  9  Gray,  493,  and  n.  525;  Hall  v.  Lund,  1  llurl.  &  C.  684; 
Roberts  V.  Roberts,  55  N.  Y.  275. 

'  Stanley  v.  Green,  12  Cal.  148. 


§   S52  PKINCIPLES    OF    CONSTRUCTION.  1152 

boundaries,  and  fails  to  designate  the  particular  part  of 
such  strip  traversed  by  such  line,  and  the  grantee  enters 
into  possession  under  the  deed,  and  marks  the  lateral 
bounilaries  by  the  erection  of  fences,  and  retains  posses- 
sion fur  several  years,  with  the  grantor's  consent  and  ac- 
quiescence, the  parties  thus  place  a  practical  construction 
upon  the  deed,  and  this  construction  binds  both  the  par- 
ties and  those  claiming  under  them.^ 

§  852.  Election  of  grantee. — Where  a  deed  may  op- 
erate in  two  different  ways,  the  grantee  may  elect  as  to 
which  one  of  the  ways  it  shall  operate.  This  is  but  the 
statement  in  another  form  that  the  deed  shall  be  con- 
strued most  strongly  against  the  grantor,  or  at  least  a 
consequence  of  this  rule.  ''Where  a  deed  may  inure  in 
different  ways,  the  grantee  shall  have  his  election  which 
way  to  take  it.  An  exception  in  a  deed  is  always  to  be 
taken  most  favorably  for  the  grantee;  and  if  it  be  not  set 
down  and  described  with  certainty,  the  grantee  shall  have 
the  benefit  of  the  defect."^  "The  general  rule  is,  that  of 
everything  uncertain  which  is  granted,  election  remains 
to  him  to  whose  benefit  the  grant  was  made  to  make  the 
same  certain.'"  But  where  a  grantor  conveyed  "a  cer- 
tain lot  of  land  situate  on  my  home  farm  in  Winslow,  and 
on  the  west  side  of  the  road  leading  to  Augusta,  to  be 
selected  by  said  Grover  (the  grantee)  or  his  assigns,  any- 
where on  my  said  farm  west  of  said  road,  and  if  the  loca- 
tion of  the  lot  of  land  should  be  at  a  distance  from  said 
road,  a  good  and  sufficient  passageway  from  said  road  to 

^  Messer  v.  Oestreich,  52  Wis.  684.  See,  also,  Whitney  v.  Robinson, 
53  Wis.  309.  A  deed  whicli  exhibits  on  its  face  its  own  invalidity  cannot 
be  made  the  basis  of  an  action :  Welton  v.  Palmer,  39  Cal.  456. 

*  Jackson  v.  Myers,  3  Johns.  388 ;  3  Am.  Dec.  500,  per  Kent,  C.  J. 
See,  also,  Esty  v.  Baker,  50  Me.  331;  79  Am.  Dec.  616;  Melvin  v.  Pro- 
prietors of  Locks,  5  Met.  27 ;  38  Am.  Dec.  384. 

»  Armstrong  v.  Mudd,  10  Mon.  B.  144;  50  Am.  Dec.  545;  Vin.  Abr. 
vol.  14,  p.  49.  See,  also,  Jackson  v.  Blodgett,  16  Johns.  172;  Jackson  v. 
Gardner.  8  Johns.  394;  2  Hiiliard  on  Real  Prop.  (2d  ed.)  327;  2  Greenl. 
Cruise  on  Real  Prop.  605 ;  Willard  on  Real  Estate  and  Conveyancing, 
403;  Pollard  v.  Maddox,  28  Ala.  321. 


1153  PRINCIPLES    OF    CONSTRUCTION.  §  853 

the  place  where  said  lot  may  be  selected,  and  never  ob- 
structed by  me  or  my  heirs  or  assigns,  the  said  lot  to  con- 
tain one  acre  in  such  shape  as  said  Grover  or  his  assigns 
may  choose,  all  to  be  according  to  my  bond  to  John  Reed, 
of  Clinton,  dated  Oct.,  1836,  reference  thereto  being  had, 
will  fully  appear,  said  one  acre  is  supposed  to  contain  a 
ledge  of  limestone  or  marble,"  and  at  the  time  of  the  exe- 
cution of  the  deed,  there  was  upon  the  land  a  ledge  of 
limestone  or  marble,  and  at  a  distance  from  the  ledge,  a 
dwelling-house,  barn,  and  other  buildings,  it  was  held 
that  the  grantee  was  not  entitled  to  locate  his  acre  in  such 
a  manner  as  to  include  a  ledge  of  limestone  or  marble, 
and  thence  to  run  a  narrow  strip  of  land  to  the  buildings, 
and  embrace  within  his  acre  lot  the  land  on  which  the 
buildings  were  erected.* 

§  853.  Passing-  present  interest  with  other  provisions 
to  take  effect  upon  death  of  grantor. — We  have  already 
discussed  very  fully  the  effect  of  instruments  in  the  form 
of  absolute  deeds  which  were  not  to  take  effect  until  after 
the  death  of  the  grantor.^  But  the  deed  may  pass  a  pres- 
ent  interest  in  the  land  to  the  grantee  for  life,  and  may 
also  contain  provisions  to  take  effect  by  way  of  contingent 
remainder,  upon  the  grantor's  death,  during  the  life  of 
the  grantee.  In  such  a  case  the  question  would  arise 
whether  the  instrument  is  to  be  considered  as  a  convey- 
ance, or  is  to  be  deemed  of  a  testamentary  character  only. 

^  Grover  v.  Driimmond,  25  Me.  185.  A  deed  is  conclusive  evidence  of 
the  contract,  so  far  as  the  instrument  is  intended  to  pass  or  extinguish  a 
right,  and  concludes  the  parties ;  but  the  deed  is  not  conclusive  evidence 
as  to  facts  acknowledged,  such  as  the  date,  payment  of  consideration, 
etc:  Rhine  v.  Ellen,  36  Cal.  362.  The  recital  of  collateral  facts  in  a 
deed  not  essential  to  its  validity  does  not  estop  a  party  from  denying 
them :  IngersoU  v.  Truebody,  40  Cal.  603.  Parties  exchanged  lands,  and 
executed  deeds.  Each  deed  contained  a  clause  of  general  warranty,  and 
also  a  stipulation  that  in  case  the  grantee  wasousted,  the  deed  should  be 
void,  and  he  should  have  the  right  to  re-enter,  possess,  and  own  the 
land  given  in  exchange.  It  was  held  that  when  a  party  was  ousted,  he 
had  the  right  to  elect  whether  he  would  re-enter  or  rely  on  his  warranty : 
Pugh  V.  Mays.  60  Tex.  191. 

*  See  ^^  2/9-283. 

lJE£i»,  Vol.  iL  —  73 


§  854  rniNCirLES  or  construction.  1154 

The  rule  is,  that  where  the  deed  passes  a  present  interest, 
such  contingent  provisions  do  not  convert  it  into  a  wiU. 
The  grantor  cannot  revoke  such  limitations,  nor  do  they 
become  void  by  liis  subsequent  marriage.'  Where  land 
is  conveyed  to  a  person,  the  deed  containing  the  clause, 
"but  should  he  die  without  a  wife,  or  children,  or  child, 
then  said  land  shall  pass  according  to  the  statutes  of  de- 
scent and  distribution  of  the  State,"  then  in  force,  those 
who  are  the  surviving  heirs  of  the  grantee,  in  case  he 
dies  without  having  married,  take  by  purchase  under  the 
deed  and  not  by  descent  or  inheritance  from  him.^  Where 
a  person  intends  that  a  deed  shall  take  effect  on  execu- 
tion, adopting  that  mode  of  distributing  his  property 
rather  than  by  will,  the  deed  is  an  effectual  conveyance.^ 

§  854.  IN"©  present  interest  passing-. — But  where  no 
present  interest  passes  by  the  deed,  the  rule  is  altogether 
different.  The  instrument  then,  while  in  form  a  deed,  is 
in  substance  a  will,  possessing  all  the  incidents  of  a  will. 
Thus,  a  deed  in  the  usual  form,  containing  the  clauses,  "  to 
commence  after  the  death  of  both  of  said  grantors,"  and 
also,  "it  is  hereby  understood  and  agreed  between  the 
grantors  and  the  grantee  that  the  grantee  shall  have  no 
interest  in  the  said  premises  as  long  as  the  grantors  or 

1  Brown  v.  Mattocks,  103  Pa.  St.  16.  "Many  deeds,"  said  Mr.  Jus- 
tice Paxton,  "  conveying  and  settling  property  contain  provisions  which 
become  operative  only  after  the  death  of  the  grantor  or  settler,  but  where 
a  present  interest  passes  to  a  trustee  or  the  grantee,  it  has  never  been 
supposed  that  such  instruments  were  of  a  testamentary  character": 
Brown  v.  Mattocks,  103  Pa.  St.  16.  And  see  Chandler  v.  Chandler,  55 
Cal,  267;  Rexford  v.  Marquis,  7  Lans.  248. 

^  Robinson  v.  Le  Grand,  65  Ala.  Ill ;  Phillips  v.  Thomas  Lumber  Co., 
94  Ky.  445;  42  Am.  St.  Rep.  367;  Cable  v.  Cable,  146  Pa.  St.  451 ;  Seals 
V.  Pierce,  83  Ga.  787;  20  Am.  St.  Rep.  344;  Wall  v.  Wall,  30  Miss.  91 ;  64 
Am.  Dec.  147;  White  v.  Hopkins,  80  Ga.  154, 

'  Brown  v.  Atwater,  25  Minn.  520.  But  where  he  reserves  the  power 
to  reinvest  the  title  in  himself  at  his  pleasure,  there  is  really  no  delivery, 
and  the  deed  does  not  pass  title :  Miller  v.  Lullman,  81  Mo.  311.  But  a 
habendum  clause  may  have  the  effect  of  limiting  the  estate  conveyed  so 
that  the  title  shall  revert  to  the  grantor  in  case  he  survives  the  grantee, 
and  shall  vest  absolutely  in  the  grantee  in  the  event  of  the  grantor's 
prior  death :  Bassett  v.  Budlong,  77  Mich.  338 ;  18  Am.  St.  Rep.  404.  See 
section  215,  ante. 


1155  PRINCIPLES    OF    CONSTRUCTION.  §  855 

either  of  them  shall  live,"  does  not  create  a  present  inter- 
est to  commence  at  a  future  day,  but  is  testamentary  in 
character.  Notwithstanding  the  payment  of  a  valuable 
consideration,  the  grantors  have  the  right  of  revocation 
at  their  option.^  So,  a  deed  made  upon  the  express  con- 
dition that  "  the  conveyance  of  land  herein  named  shall 
be  and  continue  the  property  of  the  first  party  during  his 
lifetime,  and  the  remainder  to  said  second  party  immedi- 
ately at  the  death  of  said  first  party,  but  in  the  event  of 
the  death  of  the  second  party  before  the  said  first  party, 
then  the  estate  herein  shall  go  to  said  first  party  as  before," 
is  a  mere  devise,  which  may  be  revoked  at  will,  and  con- 
veys no  title. ^  And  if,  in  such  a  case,  the  grantor  promise 
to  pay  the  grantee  a  sum  of  money  to  reconvey  the  land, 
the  promise  is  without  consideration.^ 

§  855.     Teudency  to  uphold  deed.* — It  seems  to  be  im- 
possible to  lay  down  an  invariable  rule  which  will  apply 

'  Leaver  v.  Gauss,  62  Iowa,  314.  Said  the  court,  per  Adams,  J:  "We 
do  not  forget  that  the  statute  provides  that  '  estates  may  be  created  to 
commence  at  a  future  day' :  Code,  §  1933.  But  we  have  to  say,  that  any 
language  employed  by  the  grantor,  which  would  be  sufficient  to  create 
an  e.state  to  commence  at  a  future  day,  would,  in  the  nature  of  the  case, 
give  a  present  interest  in  the  property.  The  estate  would  stand  created, 
and  the  enjoyment  postponed.  A  declaration  that  the  grantee  takes  no 
interest  during  the  life  of  the  grantor  is  equivalent,  we  think,  to  a  dec- 
laration that  no  entate  is  created.  The  instrument,  it  is  true,  evinces  an 
intention  favorable  to  the  grantee,  but  that  intention  is,  in  substance, 
only  testamentary,  and  is,  of  course,  subject  to  revocation,  if,  indeed,  a 
revocation  is  needed  to  prevent  it  from  becoming  operative.  The  object 
of  the  defendant's  averment  that  a  valuable  consideration  passed,  was 
to  give  the  instrument  a  present  operation  a&  binding  the  property.  It 
was  of  no  consequence  in  any  other  respect.  If  the  court  below  had  held 
that  it  was  pro{)er  to  plead  and  prove  such  fact,  it  would  have  held,  vir- 
tually, that  an  express  provision  of  the  instrument  could  be  overturned. 
We  can  conceive  that  a  valuable  consideration  might  pass  as  an  induce- 
ment to  the  person  receiving  it  to  make  a  devise.  If  a  devise  in  form 
Bhould  be  made  under  Huch  inducement,  the  instrument  by  wliich  it 
should  be  made  would  still  be  testamentary,  and  being  such,  would  be 
revocable." 

*  Bigley  v.  Souvey,  45  Mich.  370. 

'  Bigley  V.  houvey,  45  Mich.  370.  For  cases  where  the  question 
arose  whether  an  instrument  should  be  treated  as  a  deed  or  a  will,  see 
•§§  309,  ,,09 a,  and  notes  ante. 

*  This  section  is  cited  with  approval  in  Faivre  v.  Daley,  93  Cal.  071. 


§  855  PRINCIPLES    OF    CONSTRUCTION.  1156 

to  all  cases.  There  is,  it  is  to  be  observed,  however,  a 
teiuleiicy  in  the  modern  decisions  to  uphold  conveyances 
when  not  clearly  repugnant  to  some  well-defined  rule  of 
law.  Some  cases  occur  when  the  mind  may  incline  to 
one  side  or  to  the  other.  As  illustrating  this  tendency 
to  effectuate  the  intention  of  a  grantor,  we  may  select  an 
instance  where  a  deed,  after  granting  certain  land  to  the 
grantor's  wife,  thus  proceeded:  "This  deed  is  not  to  take 
eflfect  and  operate  as  a  conveyance  until  my  decease,  and 
in  case  I  shall  survive  my  said  wife,  this  deed  is  not  to  be 
operative  as  a  conveyance,  it  being  the  sole  purpose  and 
object  of  this  deed  to  make  a  provision  for  the  support  of 
my  said  wife  if  she  shall  survive  me,  and  if  she  shall 
survive  me,  then,  and  in  that  event  only,  this  deed  shall 
be  operative  to  convey  to  my  said  wife  said  premises  in 
fee  simple.  Neither  I,  the  grantor,  nor  the  said  Clarissa 
B.  Abbott,  the  grantee,  shall  convey  the  above  premises, 
while  we  both  live,  without  our  mutual  consent.  If 
I,  the  grantor,  shall  abandon  or  desert  my  said  wife, 
then  she  shall  have  the  sole  use  and  income  and  control 
of  said  premises  during  her  life."  Then  followed 
the  usual  habendum,  and  also  covenants  of  seisin  against 
encumbrances  and  warranty.  The  court  decided  that 
the  deed  should  be  upheld  as  creating  a  feoffment  to 
commence  in  futuro;  that  it  was  more  than  a  devise  in  a 
will  because  it  conveyed  to  the  grantee  a  contingent  right, 
which  could  not  be  taken  from  him.^  It  was  contended 
in  the  case  just  cited  that  to  recognize  the  validity  of  the 
deed  would  be  to  contravene  principles  of  public  policy, 
because,  it  was  claimed,  the  deed  was  an  attempt  to  evade 
the  statutes  regulating  the  making  and  execution  of  wills. 
To  this  argument,  Mr.  Justice  Barrows,  in  delivering  the 
opinion  of  the  court,  made  this  answer:  "  But  the  instru- 
ment was  duly  executed  by  the  defendant's  testator,  a  man 
capable  of  contracting,  and  having  an  absolute  power  of 
disposition  over  his  homestead  farm,  subject  only  to  the 
rights  of  his  existing  creditors.     It  was  duly  recorded,  so 

^  Abbott  V.  Holway,  72  Me.  298. 


1157  PRINCIPLES    OF    CONSTRUCTION.  §  855 

that  all  the  world  might  know  what  disposition  he  had 
made  of  a  certain  interest  in  it,  and  what  was  left  in  him- 
self. If  operative  at  all,  it  operated  differently  from  a 
will.  A  will  is  ambulatory,  revocable.  Whatever  passed 
to  the  wife  by  this  instrument  became  irrevocably  hers. 
We  fail  to  perceive  that  any  principle  of  public  policy,  or 
anything  in  the  statute  of  wills,  calls  upon  us  to  restrict 
the  power  of  the  owner  of  property,  unencumbered  by 
debt,  to  make  gifts  of  the  same,  and  to  qualify  those  gifts 
as  he  pleases,  so  far  as  the  nature  and  extent  of  them 
are  concerned.  Public  policy,  in  this  country,  has  been 
supposed  rather  to  favor  the  facilitation  of  transfers  of 
title,  and  the  alienation  of  estates,  and  the  exercise  of 
the  most  ample  power  over  property  by  its  owner  that  is 
consistent  with  good  faith  and  fair  dealing.  The  sel- 
fish principle  may  fairly  be  supposed  to  be,  in  all  but 
exceptional  cases,  strong  enough  to  prevent  too  lavish 
a  distribution  of  a  man's  property  by  way  of  gift."^ 
Another  instance  indicating  the  same  tendency  may  be 
given.  A  father  gave  and  granted  to  his  daughter,  in 
consideration  of  love  and  affection,  "all  that  tract  of 
land  constituting  his  residence  in  said  county,  to  have 
and  to  hold  the  aforesaid  premises  after  his  death,  dur- 
ing her  natural  life."  The  grantor  reserved  the  right  of 
controlling  the  premises  during  his  lifetime,  and  stated  in 
the  instrument  his  desire  that  at  his  daughter's  death  the 
property  should  be  "sold  and  divided  between  the  balance 

'■  Abbott  V.  Holway,  72  Me.  298,  304.  See  as  to  effect  of  the  statute 
of  uses  upon  the  statute  regulating  conveyances  of  real  estate  in  Maine, 
Wyman  v.  Brown,  50  Me.  1:39.  An  instrument  declaring  that  it  is  a  will, 
but  containing  words  indicating  an  intention  to  transfer  the  estate  of  tlie 
grantor,  and  containing  the  names  of  the  parties,  description  of  the 
property  and  other  formal  essentials  of  a  dtsed,  is  a  snllicient  conveyance  : 
Evenson  v.  Web.ster,  3  S.  Dak.  382;  44  Am.  St.  Kep.  802.  If  a  sister, 
after  the  execution  of  such  an  instrument,  signs  a  document  to  the  ef- 
fect that  she  will  not  make  any  claim  on  the  property,  she  is  estopped 
from  subsequently  asserting  any  claim  thereto:  Evenson  v.  Webster,  3 
S.  Dak.  382;  44  Am.  St.  Rep.  302.  Where  the  intention' of  the  parties 
appears  upon  the  face  of  the  deed,  effect  should  be  given  to  it  regardless 
of  technical  rules  of  construction:  Faivre  v.  Daley,  93  Cal.  664. 


C   555  PRINCIPLES    OF    CONSTRUCTION.  115S 

of  his  children."     The   court  said  that  it  did  not  know 
wliat  the  instrument  was,  but  finally  held  it  to  be  a  deed.^ 
Its  lano-uage  on  the  construction  of  the  instrument  was: 
"  It  is  not  easy  to  say  what  this  instrument  is.    It  has  the 
form  and  general  requisites  of  a  deed,  including  attesta- 
tion.    Construed  as  a  deed,  it   would  have  validity,  and 
take  effect;  construed  as  a  will,  it  would  be  a  nullity,  as  it 
has  but   two  witnesses,  and  the   law  requires  three.     We 
do  not  certainly  know  what  it  is.     Its  construction  is  very 
doubtful.     Taking  all  its  terms  together,  it  would  seem 
that  the  grantor  intended  to  pass  something  presently,  for 
he  defines  what  it  was  his  purpose  to  reserve,  namely,  the 
control  during  his  own  life.     By  control  he  most  probably 
meant  possession,  use,  and  enjoyment;  not  absolute  title, 
with  power  of  disposition  beyond  the   term  of  his  own 
life.     To  hold  the   instrument  to  be  a  will  would  be  to 
make   the   reservation   altogether    idle    and   useless.     By 
holding  it  to  be  a  deed,  effect  can  be  given  to  the  reserva- 
tion as  a  part  of  the  instrument  to  all  the  words,  without 
rejecting  any  as  superfluous.     This,  we  think,  is  the  safer 
and  better  construction."^     It  has  been   held,  however, 
that  a  grantor  may  in  his  deed  reserve  the  power   to  re- 
voke  the    grant.     Such    a  condition    is  not    contrary    to 
public  policy.     The  deed   gives  notice  to  the  creditors  of 
the    grantee  of  the    reservation  of  the  power   of  revoca- 
tion, and  it  cannot  be  attacked  on  the  ground  that  it  en- 
ables   the  parties  to    defeat  the  rights  of  the  creditors.' 
If  the  grantor  has    presented    as  a    part  of  the  mode  of 
revocation  some    formality  not  recognized    by  law  as  es- 

^  Dismukes  v.  Parrott,  56  Ga.  513. 

'  Dismukes  v.  Parrott,  supra.  That  the  expressions  of  the  grantor's 
motive  cannot  control  the  legal  effect  of  a  deed,  see  §  838,  and  notes,  ante. 
So  in  Cross  v.  Weare  Commission  Co.,  153  111.  499,  46  Am.  St.  Rep.  902, 
it  was  held  that  where  a  conveyance  cannot  operate  as  the  kind  in- 
tended, it  may  operate  in  some  other  form  so  as  to  effectuate  the  pur- 
pose, which,  considering  the  whole  instrument  and  the  circumstances 
and  condition  of  the  title,  appears  to  have  been  the  intention  of  the 
parties. 

»  Ricketta  v.  Louisville  etc.  Ry.  Co.,  91  Ky.  221;  34  Am.  St.  Rep.  178. 
See,  also,  Nichols  v.  Emery,  109  Cal.  323. 


1159  PRIXCirLES    OF    CONSTRUCTION.  §  855  a 

senfial,  the  power    is  not  to  be  deemed  impossible  if  exe- 
cuted for  that  reason.^ 

§  855  a.  Deed  or  will — Some  illustrations. — We  have, 
in  the  preceding  sections,  stated  the  general  principles  by 
which  it  may  be  determined  whether  an  instrument  is  a 
deed  or  a  will.  We  have,  in  another  place,  discussed  the 
question  of  the  effect  that  delivery  will  have  in  deciding 
whether  an  instrument  should  be  treated  as  a  deed  or  a 
will.^  But  it  must  be  confessed  that  the  rules,  as  they 
are  applied  by  the  courts,  are  rather  shadowy,  and  it  is 
almost  impossible  to  lay  down  a  rule  with  which  some 
well-considered  case  will  not  be  found  to  be  in  conflict. 
Mr.  Chief  Justice  Stone  has  expressed  the  confused  con- 
dition of  the  law  very  aptly  w4ien  he  says:  "There  are 
few,  if  any,  questions  less  clearly  defined  in  the  law-books 
than  an  intelligible,  uniform  test  by  which  to  determine 
Avhen  a  given  paper  is  a  deed  and  when  it  is  a  will. 
Deeds,  once  executed,  are  irrevocable,  unless  such  power 
is  reserved  in  the  instrument.  Wills  are  alwaj^s  revocable 
so  long  as  the  testator  lives  and  retains  testamentary 
capacity.  Deeds  take  effect  by  delivery,  and  are  operative 
and  binding  during  the  life  of  the  grantor.  Wills  are 
ambulatory  during  the  life  of  the  testator,  and  have  no 
effect  until  his  death.  Out  of  this  has  grown  one  of  the 
tests  of  testamentary  purpose — namely,  that  its  operation 
shall  be  posthumous.  If  this  distinction  were  carried 
into  uniform,  complete  effect,  and  if  it  were  invariably 
ruled  that  instruments  which  confer  no  actual  use,  pos- 
session, enjoyment,  or  usufruct  on  the  donee  or  grantee 
during  the  life  of  the  maker,  are  always  wills,  and  never 
deeds,  this  would  seem  to  be  a  simple  rule  and  easy  of 
application.  The  corollary  would  also  appear  to  result 
naturally  and  necessarily,  that  if  the  instrument,  during 
the  lifetime  of  the  maker,  secured  to  the  grantee  any  actual 

»  Ricketts  v.  Louisville  etc.  Ry.  Co.,  91  Ky.  221;  34  Am.  St.  Rep.  176. 
See,  also,  Bassett  v.  Budlong,  77  Mich.  338;  18  Am.  St.  Rep.  404,  and 
i  215  ante. 

»  §V  309,  309  a.     See,  also,  §§  279-283. 


§  855  b  PRINCIPLF.S    OF    CONSTRUCTION.  1160 

use,  possession,  enjoyineut,  or  usufruct  of  the  property, 
this  would  stamp  it  irrefutably  as  a  deed.  The  author- 
ities, however,  will  not  permit  us  to  declare  such  inflexible 
rule."'  The  language  just  quoted  correctly  describes  the 
contrariety  that  prevails  among  the  decisions.  The  im- 
portance of  the  subject,  however,  will  justify  us  in  calling 
to  the  reader's  mind  some  of  the  cases  iu  which  the  ques- 
tion whether  an  instrument  is  a  deed  or  a  will  was  before 
the  court  for  determination.  Where  a  deed  provided  that 
it  should  go  into  full  force  and  effect  at  the  grantor's  death, 
it  was  held  to  be  a  valid  deed,  which  conveyed  a  present 
title  to  the  grantee,  but  postponed  the  right  of  possession 
and  use  of  the  property  until  the  grantor's  death.^  So, 
where  the  grantor  reserves  and  excepts  from  the  grant 
*'all  the  estate  in  said  lands,  and  the  use,  occupation, 
rents,  and  proceeds  thereof,  unto  himself  during  his  nat- 
ural life,"  a  present  interest  is  conveyed,  and  the  deed  is 
effectual."''  A  grantor  declared  in  his  deed  that  it  was  not 
to  take  effect  until  after  his  death,  and  was  "not  to  be 
recorded  until  after  my  decease,"  but  the  court  decreed 
it  was  a  valid  conveyance,  and  was  not  testamentary  in 
character.* 

§  855  h.     Same     subject — Further     illustrations. — An 

instrument  will  be  declared  to  be  a  deed  where  it  contains 
all  the  terms  and  provisions  of  one,  although  it  may  con- 
tain a  clause  that  the  grantor  and  his  wife  are  to  retain 
the  use,  benefit,  and  control  of  the  land  conveyed  during 
their  natural  lives.^  Land  was  conveyed  by  the  owner  to 
one  of  his  sons  as  trustee,  upon  trust  to  sell  it  within  a 
specified  time,  and,  after  the  grantor's  death,  to  divide  the 
proceeds  in  certain  designated  proportions  to  the  grantor's 
children,  and  to  invest  the  remaining  part  for  the  benefit 

^  Sharp  V.  Hall,  86  Ala.  110 ;  11  Am.  St.  Rep.  28.  The  learned  justice 
cites  section  983  of  this  treatise,  and  also  many  cases  bearing  upon  the 
question  before  the  court. 

'  Bunch  V.  Nicks,  50  Ark.  367. 

'  Gates  V.  Gates,  135  Ind.  272. 

*  Shackelton  v.  Sebree,  86  111.  616. 

*  Basa  V.  Bats,  52  Ga.  5ol. 


1161  PRINCIPLES    OF    CONSTRUCTION.  §  855  b 

of  another  child  of  the  grantor.  The  grantor,  in  the  deed, 
reserved  a  power  of  revoking  the  trust,  but  remained  in 
possession  of  the  land  during  his  life  without  exercising 
the  power  of  revocation.  The  conveyance,  it  was  decided, 
passed  immediately  a  vested  interest  to  the  trustee,  in 
whom  was  placed  the  whole  estate  necessary  for  the  trust. 
The  grantor,  in  effect,  retained  the  equivalent  of  a  life 
estate  during  his  own  life,  which  entitled  hira  to  remain 
in  possession  of  the  laud,  or  to  lease  it  and  retain  the 
profits.  Its  character  as  a  deed  was  not  changed  or  de- 
stroyed by  the  power  of  revocation,  nor  did  this  power 
operate  to  convert  it  into  a  testamentary  disposition  of 
property.^  A  clause  that  "the  condition  of  this  deed  is 
such  that  I  hereby  reserve  all  my  riglit,  title,  and  interest 
in  the  aforesaid  described  pieces  of  land,  with  all  the 
buildings  thereon  during  my  natural  life,"  is  to  be  con- 
sidered as  a  reservation  creating  a  life  estate,  and  not  as 
impairing  the  efhcacy  of  the  instrument  as  a  conveyance 
of  title.'  A  conveyance  is  not  converted  into  a  will 
because  it  contains  a  clause  that  "this  conveyance  to  be 
put  to  record,  but  not  to  take  effect  so  as  to  give  posses- 
sion until  after  my  death."  ^  Although  the  deed  may  be 
a  voluntary  conveyance,  yet  if  it  conveys  to  the  grantee 
a  present  interest,  but  postpones  the  enjoyment  of  posses- 
sion, the  grantor  cannot,  after  its  execution,  defeat  the 
title  of  the  grantee.*  Such  deeds  reserving  a  life  estate  in 
the  grantor  are  irrevocable  after  execution.^  A  deed  recit- 
ing that  "  the  above  obligation  to  be  of  no  more  effect  until 
after  the  death  of"  the  grantor  and  his  wife,  "then  to  be 
in  full  force,"  passes  a  present  interest  in  the  land,  and 
will  not  be  treated  as  a  will.®  So,  language  in  a  deed  that 
it  is  to  take  after  the  grantor's  death,  and  not  before,  will 

'  Nichols  V.  Emery,  109  Cat.  32.^. 

»  Graves  v.  Atwood,  52  Conn.  512;  52  Am.  Dec.  610. 

»  Rawlings  v.  McRoberts,  93  Ky.  346. 

♦  McDaniels  v.  Johns,  45  Miss.  632;  Mattocks  v.  Brown,  103  Pa.  St. 
16. 

"  Whiti-  V.  Hopkins,  80  Ga.  154. 

•  Wilson  V.  Carrico,  140  Ind.  533;  49  Am.  St.  Rep.  533. 


§  855  c  PRINCIPLES    OF   CONSTRUCTION.  1162 

not  cliange  its  nature,  but  will  be  construed  as  a  declara- 
tion that  the  grantee's  use  and  enjojnnent  are  to  be 
postponed  until  the  grantor's  death/  The  essential  char- 
acteristic of  a  will  is  that  it  becomes  effective  only  upon 
the  death  of  the  maker,  and  that  by  it  he  has  divested 
himself  of  no  part  of  his  estate,  and  no  title  has  become 
vested  in  any  other  person.  To  render  the  instrument  a 
deed  some  interest  must  pass  immediately,  but  an  imme- 
diate enjoyment  of  the  interest  conveyed  is  not  necessary. 
The  commencement  of  the  future  enjoyment  may  be 
made  dependent  upon  the  ending  of  an  existing  life  or 
lives,  or  upon  the  termination  of  some  intermediate  es- 
tate.^ A  deed  is  valid  whicli  is  made  upon  the  express 
provision  that  the  grantors  niay  have  and  retain  the  en- 
tire use  and  control  of  the  premises  so  long  as  they,  or 
either  of  them,  may  live.^  The  rule  is  that  a  present 
interest  must  pass.  A  vested  right  must  be  created,  but 
the  postponement  of  the  use  or  enjoyment  of  this  vested 
right  will  not  affect  the  deed  as  a  valid  conveyance.^ 

§  855  c.  When  a  will. — But  to  have  the  effect  of  a 
deed,  the  instrument  must  convey  a  present  interest.  If 
it  states  that  the  grantee  shall  have  no  interest  in  the 
property  so  long  as  the  grantor  shall  live,  this  essential  is 
wanting,  and  it  becomes  testamentary  in  character  and 
may  be  revoked  by  the  grantor.^  An  instrument  direct- 
ing the  beneficiary  to  pay  the  maker's  debts  and  to  retain 

1  Owen  V.  Williams,  114  Ind.  179. 

*  Nichols  V.  Emery,  109  Oal.  323. 

8  Chandler  v.  Chandler,  55  Cal.  267. 

*  Moye  V.  Kittrell,  29  Ga.  677;  Wilson  v.  Carrico,  140  Ind.  533;  49 
Am.  St.  Rep.  213;  Wyman  v.  Brown,  50  Me.  139;  Dreisbach  v.  Serfass, 
126  Pa.  St.  32;  Brown  v.  Atwater,  25  Minn.  520;  Webster  v.  Webster,  33 
N.  H.  18;  66  Am.  Dec.  705;  Watson  v.  Watson,  22  Ga.  460;  Johnson  v. 
Mines,  31  Ga.  720;  Wall  v.  Wall,  30  Miss.  91;  64  Am.  Dec.  147;  Abbott 
r.  Hoiway,  72  Me.  98;  Swails  v.  Bushart,  2  Head,  560;  Blanchard  v. 
Morey,  56  Vt.  170;  Owen  v.  Williams,  114  Ind.  179;  Meek  v.  Holton,  22 
Ga.  491  ;  Bonn  v.  Bunn,  22  Ga.  472;  Dismukes  v.  Parrott,  56  Ga.  513; 
Jenkins  v.  Adcock,  5  Tex.  Civ.  App.  466 ;  Mitchell  v.  Mitchell,  108  N.  C. 
542;  Gorham  v.  Daniels,  23  Vt.  600. 

*  Leaver  «;.  Gauss,  62  Iowa,  314;  Bigley  v.  Souvey,  45  Mich.  370. 


1163  PRINCIPLES    OF    CONSTRUCTION.  §  855  C 

the  residue  left  after  this  is  done,  and  providing  that  it  is 
not  to  take  effect  until  the  grantor's  death,  although  it 
may,  by  its  own  language,  be  characterized  as  a  deed,  and 
may  be  acknowledged  as  such,  will  be  treated  as  a  tes- 
tamentary disposition  of  property,  because  it  passes  no 
present  interest  in  the  property/  If  a  grantor,  in  an  in- 
strument purporting  to  be  a  deed,  reserves  "all  the  within- 
named  estate,  both  real  and  personal,  during  his  natural 
life,"  and  it  appears  that  the  intention  of  the  maker  was 
that  it  should  become  operative  only  on  his  death,  it  can- 
not take  effect  as  a  deed,  but  must  be  considered  a  testa- 
mentary disposition  of  the  property."  If  the  grantor 
retains  the  right  of  ownership  until  his  death,  and  declares 
in  the  instrument  that  upon  his  death  the  deed  shall  take 
effect,  it  is  not  valid  as  a  deed,  but  must  be  treated  as  a 
will.^  Although  the  deed  may  contain  present  words  of 
gift,  yet  if  it  contains  other  clauses  showing  that  a  life 
estate  is  reserved,  and  that  the  gift  is  not  to  take  effect 
until  the  grantor's  death,  it  may  be  converted  into  a  will. 
Thus,  where  a  husband  and  wife  made  such  a  deed  of  the 
wife's  separate  estate  to  their  children,  and  it  was  provided 
that  the  gift  was  to  take  effect  at  her  death,  and  that  her 
husband,  as  her  executor,  should  keep  the  property  for  a 
specified  time  for  the  benefit  of  the  children  until  the  es- 
tate can  be  wound  up,  when  the  gifts  were  to  be  distrib- 
uted, these  clauses  convert  it  into  a  will  and  destroy  its 
character  as  a  deed/  If  the  instrument  contain  a  condi- 
tion, performance  of  which  will  cause  the  property  to  re- 
vert to  the  grantor,  and  provides  that  after  his  death  it 
shall  be  divided  share  and  share  alike  between  designated 
relatives,  it  is  invalid  as  a  deed/  The  rule  to  be  deduced 
from  the  authorities  may  be  stated  to  be  that  where  no 
present  interest  becomes  vested  by  the  instrument,  but  it 
directs    what  is  to   be   done   after  the  maker's  death,  or 

1  Cunningham  v.  Davis,  62  Miss.  636. 

»  Carlton  v.  Cameron,  54  Tex.  72;  38  Am.  Rep.  620. 

»  Walker  v.  Jones,  23  Ala.  448;  Bigley  v.  Souvey,  45  Mich.  370. 

*  Mosser  v.  Mosser,  32  Ala.  551. 

*  Mallery  v.  Dudley,  4  Ga.  32. 


§  856  niiNcirLES  of  construction.  1164 

becomes  operative  only  in  that  event,  it  is  to  be  considered 
a  testamentary  disposition  of  property,  notwitlistanding 
the  intention  of  the  parties  was  to  execute  a  dejd.^ 

§  850.      Conveyance  of  estate  not  owned  by  grantor. 

While  on  this  subject,  we  may  consider  the  effect  of  a 
conveyance  of  land  owned  by  the  grantor  at  the  time  of 
his  death,  but  not  owned  at  the  time  of  the  execution  of 
the  deed.  A  case  in  Maine  will  illustrate  the  construc- 
tion to  be  placed  upon  deeds  of  this  character.  Four 
years  before  tlie  grantor's  death  he  executed  a  deed  con- 
veying "all  the  estate,  wherever  situated,  tliat  I  now  own, 
or  may  own  at  the  time  of  my  decease."  The  deed  also 
contained  the  clauses:  "A  list  of  the  several  pieces  or 
lots  of  land  will  be  found  with  my  papers.  This  deed 
to  have  full  effect  immediately  before  my  decease." 
The  deed,  the  court  held,  conve^^ed  only  such  of  the 
land  owned  by  the  grantor  at  the  date  of  the  deed  as  he 
continued  to  own  when  it  took  effect,  and  it  did  not  convey 
any  real  estate  acquired  by  the  grantor  after  the  execution 
of  the  conveyance.-  "It  is  a  cardinal  rule,"  said  Mr.  Jus- 
tice Dickerson,  "that  deeds  are  to  be  so  construed  as  to 
give  effect  to  the  intention  of  the  parties.  The  intention 
must  be  intelligible  and  consistent  with  the  rules  of  law. 
If  an  instrument  in  writing  upon  its  face  purports  to  pass 
the  title  to  land  in  such  manner  and  form  as  by  the  rules 
of  law  can  only  be  done  by  will,  it  cannot  be  sustained  as 
a  deed.  A  deed  given  to  take  effect  in  futiiro,  upon  its 
subsequent  delivery,  or  some  future  contingency,  may  not 
convey  the  same  property  that  a  deed  having  the  same 
description  conveys,  when  it  takes  effect  at  the  time  of  its 
execution.     Between  the  time  of  execution  and  the  time 

^  Millican  v.  Millican,  24  Tex.  427;  Babb  v.  Harrison,  9  Rich.  Eq. 
Ill ;  70  Am.  Dec.  203;  Gage  v.  Gage,  12  N.  H.  371 ;  Brewer  v.  Baxter,  41 
Ga.  212;  5  Am.  Rep.  530;  Turner  v.  Scott,  51  Pa.  St.  126;  Watkins  v. 
Dean,  10  Yerg.  320 ;  31  Am.  Dec.  583 ;  Hall  v.  Bragg,  28  Ga.  330 ;  Symmes 
V.  Arnold,  10  Ga.  506;  Shepherd  v.  Nabors,  6  Ala.  631;  Frederick's  Ap- 
peal, 52  Pa.  St.  338;  91  Am.  Dec.  159;  Dunne  v.  Bank  of  Mobile,  2  Ala. 
152. 

»  Libby  V.  Thornton,  64  Me.  479. 


1165  PRINCIPLES    OF    CONSTRUCTION.  §  856 

of  taking  effect,  the  grantor  may  have  conveyed  a  part  or 
the  whole  of  the  property  intended  to  be  conveyed  to  a 
bona  fide  purchaser,  who  holds  it  under  a  recorded  deed; 
or  it  may  have  been  taken  on  execution.  In  such  cases, 
the  grantee  acquires  title  to  such  part  of  the  land  only  as 
remains  the  property  of  the  grantor  when  the  deed  takes 
effect.  The  intention  to  be  regarded  must  be  one  exist- 
ing in  the  minds  of  tlie  parties  when  the  deed  is  executed. 
When  the  question  arises  with  respect  to  what  particular 
land  the  deed  conveys,  the  inquiry  is.  What  did  the  grantor 
intend  to  convey  and  the  grantee  to  receive?  Their  in- 
tention in  this  respect  is  to  be  ascertained  from  the  de- 
scription in  the  deed.  If  the  subject  of  the  grant  cannot 
be  identified  from  that,  the  grant  becomes  void  for  uncer- 
tainty." The  justice  observed  that  it  was  unnecessary  to 
determine  whether  the  deed  took  effect  on  delivery  or 
immediately  before  the  death  of  the  grantor,  because  it 
did  not  appear  that  the  grantor  had  made  or  received 
any  conveyances  between  the  time  of  the  delivery  of  the 
deed  and  the  grantor's  death.  It  also  became  unneces- 
sary, said  the  justice,  to  determine  whether  the  descrip- 
tion "all  the  real  estate,  wherever  situated,  that  I  now 
own,"  was  sufficient  to  pass  the  title  to  the  land  owned 
by  the  grantor  when  the  deed  was  executed,  "inasmuch 
as  this  description  is  aided  by  being  coupled  with  'a 
list  of  the  several  pieces  or  lots  of  land,'  found  among 
the  grantor's  papers,  and  referred  to  in  the  deed.  These 
clauses  together  clearly  show  that  the  grantor  had  a 
legal  and  intelligible  intention  to  convey,  and  the  gran- 
tees to  receive,  by  the  deed,  title  to  'the  several  pieces 
or  lots'  described  in  the  memoranda  thus  referred  to. 
It  follows,  from  the  principles  before  stated,  that,  though 
the  deed  was  intended  to  take  effect  in  futuro,  it  op- 
erated to  convey  the  grantor's  title  to  such  parts  of 
'the  several  pieces  or  lots  of  land,'  referred  to  in  the  deed, 
as  he  continued  to  own  when  the  deed  took  effect."  As  to 
the  effect  of  the  deed  as  a  conveyance  of  title  to  real  estate 
acquired  by  the  grantor  after  the  deed  was  executed,  and 


§  856  rKINCIl'LKS    OF    CONSTRUCTION.  1166 

remaining  in  him  when  the  deed  took  effect,  the  justice 
continued:  "The  hmguage  of  the  description  in  the  deed 
is,  'all  the  real  estate,  wherever  situated,  tiiat  I  now  own 
or  may  own  at  the  time  of  my  decease.'  The  latter 
clause  in  the  description  is  not  aided  by  the  subsequent 
reference  in  the  deed  to  'the  several  pieces  or  lots  of 
land,'  as  that  relates  to  real  estate  owned  by  him  when 
tiie  deed  was  executed.  Real  estate  acquired  by  the 
grantor  subsequently  to  the  execution  of  the  deed,  was  not 
in  esse  with  respect  to  him  when  he  signed  the  deed, 
Neitlier  he  nor  his  grantors  could  then  have  had  any 
rational  or  intelligible  intention  with  regard  to  the  loca- 
tion, quantity,  number  of  parcels,  value,  and  the  like,  of 
the  real  estate  he  might  thus  acquire.  He  might  take 
conveyances  of  property  tiiat  would  increase  the  value  of 
the  estate  he  owned  when  the  deed  was  executed  an  hun- 
dred fold,  and  might  dispose  of  it  all  l)efore,  or  retain  the 
whole  or  a  part  of  it  when  the  deed  should  take  effect. 
Upon  all  these  matters  the  deed  is  silent,  though  it  is  to 
tlie  description  in  the  deed  that  we  are  to  look,  in  order 
to  ascertain  what  particular  real  estate  was  designed  to 
be  conveyed  by  this  clause  in  the  deed.  The  subject  of 
the  grant  under  tiiis  clause  cannot  be  ascertained  from 
the  description,  and  the  grant  is  necessarily  void  for  un- 
certainty. Moreover,  the  deed  cannot  be  held  to  pass  the 
grantor's  title  to  real  estate  acquired  by  him  subsequently 
to  its  execution,  without  abolishing  the  distinction  be- 
tween the  formalities  required  by  the  statute  of  wills,  and 
those  necessary  to  convey  real  estate  by  deed."  ^  To  the 
general  rule  that  an  after-acquired  title  passes  to  the 
grantee  is  the  exception  that,  if  the  grantor  executes  to  his 
grantor  a  mortgage  to  secure  the  purchase  money  on  the 
premises  subsequently  acquired,  the  rights  of  the  mortga- 
gee are  not  atfected  by  the  prior  conveyance.^ 

1  In  Libby  v.  Thornton,  64  Me.  479. 

*  Morgan  v.  Graham,  35  Iowa,  213.  It  was  said  by  Deady,  J.,  in 
Lamb  V.  Kamm,  1  Saw.  2i6,  241:  "Bat  a  mere  expectation  or  belief  that 
a  party  will  at  some  future  time  acquire  an  interest  in  certain  property 
is  not  itself  an  estate  or  interest  of  any  kind,  and  cannot  be  conveyed  by 


1167  PRINCIPLES    OF    CONSTRUCTION.  §  857 

§  8  "57.      Conveyance  in  fee  with  condition  upon  a  rigrht 
of  possession  in  the  grantors. — Where  the  parties  clearly 
express  their  intentioa,  there   can  be  litlle,  if  any  room, 
for  construction.     In  a  case  in  Vermont,  where  a  deed  in 
the  usual  form  of  a  conveyance  of  a  present   fee  simple, 
but  with  conditions,  came  before  the  court  for  construc- 
tion, Mr.  Justice  Veazey  commenced  with    the    observa- 
tion,  so   often    well    founded:    "The    unskillfulness    and 
ignorance    of  the    draftsman    in    such    matters    have  as 
usual  caused  difficulty."     The  deed  made  by  a  man  and 
his  wife  to  two  of  his  children,  in  its  granting  part  pur- 
ported to  convey  a-  present  estate  in  fee  simple,  but  con- 
tained the  condition  that  the  grantees  "are  not  to  have 
any  right  or  title  whatever  to  the  above-described  prem- 
ises, so  long  as  we,  or  either  of  us,  live;  and  the   above 
deed  is  not  to  be  binding  upon  us,  or  either  of  us,  if  in 
any  case  we  should  want  or  need  to  sell  a  part  or  all  of 
said  real  estate  in  order   to  maintain   us,  and   the  above 
deed  is  to  be  null  and  void  in  such  case,  and  we  are  to 
have  the  entire  control  of  the  above  premises  during  our 
natural  lives."     The  construction  placed  upon  this  con- 
dition is  best  given  in  the  language  of  the  court:  "If  the 
part  of  the  condition    to   the  effect  that  the  grantees  are 
not  to  have  any  right  or  title  whatever,  so  long  as  either 
of  the  grantors  live,  constituted  the  whole  of  the  condi- 
tion, it  would   be    difficult  to  construe  it  as   compatible 
with    an    estate  whatever  in  presenti.     Its  import  seems 
to  be  not  to  limit,  explain,  or  qualify  the  grant,  but  in  ex- 
press terms  to  nullify  and  destroy  it.  Where  the  two  parts 
of  a  deed  are  irreconcilable,  one  of  them  must  fail;  and  of 
the  two  the  condition  should  fail  and  the  absolute  part  of 

the  conveyance  stand But  a  deed  should  be  inter- 

jtreted  most  favorably  for  its  own  validity,  and  for  the 
effectuation  of  the  design  of  the  grantors,  where  that  is 
plainly  expressed,  or  can  be  collected,  or  ascertained  from 

deed.  For  instance,  a  son  who  is  heir  apparent  to  hia  father,  may  rea- 
sonably exf)ef.t  to  inherit  the  latter's  property,  bat  an  ext>octation  or 
ho[)e  not  being  an  interest  in  tiie  property,  it  is  well  settled  that  the  deed 
of  the  heir  under  such  cireunistancea  conveys  nothing  aud  is  inoperative." 


§   857  TRINCirLES    OF    CONSTRUCTION.  1168 

tlie  deed,  unless  it  is  in  conflict  with  some  rule  of  law. 
The  intent  is  to  be  derived  upon  view  and  comparison  of 
the  whole  instrument.  We  think  the  grantors'  intent  in 
this  deed,  though  clumsily  expressed,  yet  fairly  collectible, 
and  ascertainable  from  it  as  a  whole,  was  to  convey  the 
premises  in  fee,  conditioned  upon  a  right  of  possession  and 
use  in  the  grantors,  and  the  survivor  of  them  during  life, 
and  of  being  supported,  so  far  as  needed,  in  addition 
and  suitable  to  their  condition  in  life,  by  the  grantees; 
with  the  further  right  in  the  grantors  to  sell  and  con- 
vey for  their  necessities,  in  case  of  failure  to  receive 
support  from  the  grantees.  The  right  to  support  and 
to  sell  for  their  necessities,  was  a  provision  in  the 
nature  of  a  condition  of  absolute  defeasance.  If  the 
grantees  wished  the  conveyance  to  become  absolute,  they 
were  bound  to  see  that  no  occasion  should  arise  for  the 
grantors  to  sell  for  their  necessities."^  Where  a  father 
executes  to  his  son  a  deed  of  real  and  personal  property, 
with  the  condition  that  the  grantor  and  his  wife  shall 
enjoy  the  use  and  possession  of  the  property  during  their 
lives,  and  that  at  their  death,  and  not  before,  the  grantee 
shall  have  possession,  the  deed  is  to  be  considered  as  a 
grant  upon  condition  subsequent.^  In  an  earlier  case, 
however,  in  Vermont,  where  a  deed  reserved  an  estate 
during  the  lives  of  the  grantor  and  his  wife,  the  latter  not 
being  a  party  to  the  deed,  it  was  decided,  that  upon  the 
death  of  the  husband  the  estate  descends  to  his  personal 
representatives,  and  the  wife  is  entitled  to  dower.^  "The 
granting  of  an  estate  in  fee,  to  take  effect  after  a  particu- 
lar estate  reserved  as  an  estate  for  life,  or  lives,  is  not 
inconsistent  with  the  law  of  England.     And  if  it  were,  it 

'  Blanchard  v.  Morey,  56  Vt.  170,  and  cases  cited. 

*  Sherman,  Administrator  v.  Estate  of  Dodge,  28  Vt.  26. 

*  Gorham  v.  Daniels,  23  Vt.  600.  Where  a  husband  has  conveyed 
land  to  a  trustee  for  the  use  of  his  wife  and  her  children  by  him,  born 
and  to  be  born,  with  a  condition  in  the  habendum  that  in  case  of  him 
surviving  her,  the  property  should  revert  to  him  free  from  the  trust,  the 
title  is  in  the  trustee  defeasible  on  the  contingency,  on  the  happening  of 
which  the  title  revests  in  the  husband :  Woods  v.  Woods,  87  Ga.  562. 


1169  PRINCIPLES    OF    CONSTRUCTION.  §  858 

could  have  no  application  here;  for  under  our  statute  of 
conveyancing,  there  being  no  livery  of  seisin  in  fact 
necessary  to  invest  the  grantee  with  the  title,  but  only 
the  seisin  resulting  from  the  due  execution  and  record- 
ing of  the  deed,  there  is  no  objection  whatever  to  the 
creating  of  a  freehold  estate,  in  terms,  to  take  effect  in 
future.  This  has  been  expressly  decided  in  some  of  our 
American  States,  and  we  see  no  valid  objection  to  holding 
the  same  under  our  statute."^  As  illustrating  the  im- 
possibility of  formulating  any  but  the  most  general  rules 
of  constructioQ,  is  the  observation  of  Mr.  Justice  Red- 
field,  that  "it  is  not  uncommon  for  instruments  quite  as 
similar  as  these  to  receive  different  interpretations  by  the 
same  court." ^ 

§  858.  Limited  estates.  —  Whether  a  life  estate  or  an 
estate  in  fee  is  conveyed  must  be  determined  by  consider- 
ing the  deed  as  a  whole.  Some  instances,  where  deeds 
came  before  the  court  for  construction  as  to  the  estate 
conveyed,  may  be  cited.  In  one,  a  father  conveyed  to  his 
daughter,  who  was  a  married  woman,  a  piece  of  property 
in  consideration  of  natural  love  and  affection,  "  and  for 
settling  and  assuring  the  premises  for  such  purposes,  and 
upon  such  conditions  as  are  hereinafter  expressed  ";  the 
habendum  clause  was  to  have  and  to  hold  the  property 
"unto  the  said  grantee,  her  heirs  and  assigns,  forever^  to 
the  end  and  intent  that  the  same  shall  and  may  be  for 
her  sole  and  separate  use,  benefit,  behoof,  and  disposal, 
notwithstanding  her  present  or  future  coverture,  for  and 
clear  of  and  from  interruption,  intervention,  and  con- 
trol of  her  husband,  or  any  future  husband  she  may  have, 
and  without  being  in  any  way  or  manner  subject,  respon- 
sible, or  liable  to  or  for  the  existing  or  future  contracts, 
debts,  liabilities,  or  engagements  of  her  present  husband, 
or  any  future  husband  she  may  have."  The  court  de- 
cided that  under  this  instrument  the  grantee  took  an  es- 

1  Gorham  v.  Daniels,  23  Vt.  600,  611,  per  Redfield,  J. 
*  Slierman  Administator  v.  Estate  of  Dodge,  28  Vt.  26,  30. 
Deeds,  Vol.  II.  — 74 


§  858  PRINCIPLES    OF   CONSTRUCTION.  1170 

tate   of   inheritance    in    fee,   and    not  an   estate   for    life 
merely.^     In   another   case   a  person  in  consideration  of 
marriage  executed  a  deed  by  whicli  he  conveyed  a  tract 
of  land   to  the  grantee,  "and  to  her  heirs  and  assigns; 
to  hold    the    same   during  her   lifetime,  and   then    said 
land  to  revert  to   my  heirs,  both  of  her  and  my   former 
wife;    provided    that  she    shall    have  all   she    makes    as 
her   own   each  year,   to   dispose  of  as   she   sees   fit,    and 
to   hold   said    land   in  any   manner   belonging   as   afore- 
said."    The  court  held  that  by  a  fair  and  liberal  interpre- 
tation of  the  whole  deed  it  was  the  intention  of  the  grantor 
to  convey  only  a  life  estate,  and  not  a  fee  simple.^     A 
deed    was    made    to    a  person    upon    condition    that    he 
should  take    "the  possession,   care,   and   custody   of   the 
said  premises,  for  and  during  the  term  of  his  natural  life, 
to  let  or  lease  the  same,  collect  all  rents  and  incomes  to 
be  derived  therefrom,  and  to  pay  all  taxes,  insurance,  re- 
pairs, and  incidental  expenses  that  may  accrue  on  said 
premises,  and  the  balance  appropriate  to  his  own  use  if 
he  choose  so  to  do,  or  to  such  uses  and  purposes  in  the 
exercise  of  his  judgment  as  he  may  see  fit,  but  said  in- 
come not  in  any  ways  liable  for  his  debts  or  liabilities,  or 
be  accountable  to  any  person  therefor;  and  at  any  time 
he  may  desire  or  deem  expedient,  relinquish  the  posses- 
sion of  the  said  premises"  to  the  children  of  the  grantee. 
The  court  decided  that  if  he  accepted  the  conveyance,  he 
acquired  a  life  estate  which  might  be  taken  on  execution 
by  his  creditors.^     Real  estate  was  conveyed  to  a  husband 
"and  his  heirs  and  assigns  forever."     The  deed  further 
provided  that  the  property  was  to  be  held  by  the  grantee 
"for  and  during  his  natural  life,"  and  to  his  wife  "  if  she 
be  living  at  the  death"  of  the  grantee,  and  if  she  was  not 
living  at  the  death  of  the  grantee,  then  to  his  heirs  and 
assigns  forever.     The  husband  devised  the  land  to  his 
wife  and  to  his  children  by  her.     Subsequently  he  died, 

1  Pool  V.  Blakie,  53  111.  495. 

'  Caldwell  v.  Hammons,  40  Ga.  345. 

8  Wellington  v.  Janvrin,  60  N.  H.  174. 


1171  PRINCIPLES    OF    CONSTRUCTION.  §  859 

and  his  death  was  followed  by  that  of  his  wife.  The  chil- 
dren of  the  marriage  between  the  grantee  and  his  wife 
instituted  an  action  against  the  children  of  the  wife  by 
another  marriage,  claiming  the  whole  of  the  land.  The 
court,  determined,  however,  that  the  husband  acquired 
an  estate  which  terminated  on  his  death,  leaving  his  wife 
surviving  him;  that  at  his  death  she  became  entitled  to 
the  whole  estate,  and  that  on  her  death,  intestate,  the 
children  by  both  marriages  became  entitled  to  the  land. 
The  court  were  also  furlher  of  the  opinion,  that  if  the 
husband  had  survived  the  wife,  the  title  to  the  whole 
estate  would  have  vested  in  him.^ 

§  859.  Same  subject — Continued. — A  deed  was  made 
to  a  husband  in  trust  for  the  sole  and  sej)arate  use  of  his 
wife,  "for  and  during  the  term  of  her  natural  life,  free 
from  the  debts,  liabilities,  or  contracts  of  her  present  or 
any  future  husband,  with  remainder  at  her  death  to  her 
children  then  in  life,"  by  her  husband  begotten.  The 
deed  also  [)rovided  that  if  she  should  die  leaving  no  child  or 
issue  of  a  child  by  her  husband,  the  trustee,  begotten,  the 
remainder  should  be  to  him  and  his  heirs  in  fee  simple;  it 
also  contained  a  proviso  that  the  trustee  for  the  time  being 
might  at  any  time  in  a  deed  in  which  she  would  volunta- 
rily join,  convey,  mortgage,  or  exchange  the  property,  re- 
investing the  proceeds  of  such  sale  subject  to  the  same  trust. 
The  wife,  the  court  held,  had  only  a  life  estate  in  the  prop- 
erty .^  The  legal  effect  of  a  deed  conveying  lands  to  a  person, 

1  Carson  v.  McCaslin,  60  Ind.  334. 

'^  In  Matter  of  Chisolm,  8  Ben.  C.  C.  242.  See,  also,  as  to  construc- 
tion of  peculiar  deeds,  and  as  to  estate  conveyed,  Seaman  v.  Harvey,  16 
Hun,  71;  Johnson  ?;.  Leonard,  68  Me.  237;  Gilkey  v.  Shephard,  51  Vt. 
546;  Winter  v.  Gorsuch,  51  Md.  180;  Thompson  v.  Carl,  51  Vt.  408; 
Preston  y.  Heiskell,  32  Gratt.  48;  Vinson  v.  Vinson,  4  111.  App.  138; 
Daniels  v.  Citizens'  Savings  Institution,  127  Mass.  534;  Clayton  v.  Henry, 
32  Gratt.  Sn");  Phinizy  v.  Claric,  62  Ga.  623;  Cribb  v.  Rogers,  12  S.  C. 
564;  a2  Am.  Rep.  511;  Hemstreet  d.  Burdick,  90  111.444;  Braswell  w. 
Suber,  61  Ga.  398;  Tremmel  v.  Kleiboldt,  6  Mo.  App.  549;  Taylor «. 
Cleary,  29  Gratt.  448;  Wayne  v.  Lawrence,  58  Ga.  15;  Mowry  v.  Brad- 
ley, 11  R.  I.  ;;70;  Waugh  i>.  Waugh,  84  Pa.  St.  350;  24  Am.  Rep.  191; 
Long  V.  Swindell,    77  N.  C.  176;  Jacksoa  v.  Hodges,  2  Tenn.  Ch.  276; 


§  859  PRINCIPLES    OF    CONSTRUCTION.  1172 

to  use  the  grantor's  language,  "at  my  death,"  is  that  tlie 
grantor  has  reserved  a  life  estate  to  himself,  and  cove- 
nanted to  stand  seised  to  the  use  of  the  grantee  at  the 
grantor's  death. ^  A  deed  conveyed  land  to  a  woman  dur- 
ing her  natural  life,  and  after  her  death  to  her  children 
by  her  then  husband,  "during  the  natural  life  of  each  of 
said  children,  and  after  their  death"  to  her  husband  in. 
fee,  and  "to  his  heirs  and  assigns  forever."  The  tenure 
in  the  habendum  clause  was  to  the  mother  "during  her 
natural  life,  and  after  her  death  to  the  said  surviving 
children,"  and  after  the  death  of  each  of  the  children  to 

Hurd  V.  French,  2  Tenn.  Ch.  350;  Keaves  v.  Ore  Knob  Copper  Co.,  76 
N.  C.  593;  Waugh  v.  Miller,  75  N.  C.  127;  Allen  v.  Bowen,  73  N.  C.  155; 
McEachern  v.  Gilclirist,  75  N.  C.  196;  Hawkins  v.  Parham,  75  N.  C.  259; 
Indiana  Central  Canal  Co.  v.  State,  53  Ind.  575;  Forest  v.  Jackson,  56 
N.  H.  357;  Holt  v.  Somerville,  121  Mass.  574;  Heermans  v.  Robertson, 
64  N.  Y.  332;  Pierce  v.  Gardner,  83  Pa.  St.  211;  Phillips  v.  Thompson, 
73  N.  C.  543  ;  Hutchinson  v.  Chicago  etc.  R.  R.  Co.,  37  Wis.  582;  Hurst 
V.  Hurst,  7  W.  Va.  289;  Ochiltree  v.  McClung,  7  W.  Va.  232;  Taggart  v, 
Risley,  4  Or.  235;  Tesson  v.  Newman,  62  Mo.  198;  Goodel  v.  Hibbard, 
32  Mich.  47;  Pittman  v.  Corniff,  52  Ala.  83;  La  we  r.  Hyde,  39  Wis.  345; 
Lerned  v.  Saltonstail,  114  Mass.  407;  Ingalls  v.  Newhall,  139  Mass.  268; 
Hastings  v.  Merriam,  117  Mass.  245 ;  Broadstone  v.  Brown,  24  Ohio  St. 
430;  Board  of  Education  v.  Trustees  of  First  Baptist  Church,  63  111.  204; 
Sheridan  v.  House,  4  Abb.  N.  Y.  App.  218;  Marvin  v.  Brewster  Iron 
Mining  Co.,  55  N.  Y.  538:  14  Am.  Rep.  322;  Chase  v.  Dix,  46  Vt.  642; 
Monroe  v.  Bowen,  26  Mich.  523;  Hawkins  v.  Chapman,  36  Md.  83;  Du- 
bois r.  Campau,  24  Mich.  360:  Attwood  v.  Kittell,  9  Ben.  C.  C.  473; 
Powell  v.  Morrissey,  84  N.  C.  421;  Watson  v.  Priest,  9  Mo.  App.  263; 
Robinson  v.  Payne,  58  Miss.  690;  Hewitt's  Appeal,  55  Md.  509;  Peoria  v. 
Darst,  101  111.  609;  Doe  v.  Pickett,  65  Ala.  487;  Holmes  v.  Holmes,  86 
N.  C.  205;  Smith  v.  Rice,  130  Mass.  441;  Bratton  v.  Massey,  15  S.  C. 
277;  Cannon  v.  Barry,  59  Miss.  289;  Green  Bay  &  Mississippi  Canal  Co. 
».  Hewett,  55  Wis.  96 ;  42  Am.  Rep.  701;  Currier  v.  Janvrin,  58  N.  H. 
374;  Franks  v.  Berkner,  67  Ga.  264;  Mackall  v.  Richards,  1  Mackey 
(D.  C),  444;  Mendenhall  v.  Mower,  16  S.  C.  303;  Brown  v.  Brown,  68 
Ala.  114 ;  Burnett  v.  Burnett,  17  S.  C.  545 ;  Commonwealth  v.  Hackett, 
102  Pa.  St.  505;  Hanks  v.  Folsom,  11  Lea  (Tenn.),  555;  Lindley  v.  Crom- 
bie,  31  Minn.  232;  Edwards  v.  McClurg,  39  Ohio  St.  41 ;  Kemp  v.  Brad- 
ford, 61  Md.  330;  O'Brien  v.  Brice,  21  W.  Va.  704;  Grubb  v.  Grubb,  101 
Pa.  St.  11;  Fletcher  v.  Fletcher,  88  Ind.  418;  Lorick  v.  McCreery,  20 
S.  C.  424;  Louisville  &  Nashville  R.  R.  Co.  v.  Boykin,  76  Ala,  560;  Mon- 
mouth V.  Plimpton,  77  Me.  556;  Zittlev.  Weller,  63  Md.  190;  Wilder?;. 
Wheeler,  60  N.  H.  351;  Creswell  v.  Grumbling,  107  Pa.  St.  408. 
*  Vinson  v.  Vinson,  4  Bradw.  (111.  App.)  138. 


1173  PRINCIPLES    OF    CONSTRUCTION.  §  859 

the  husband  "in  fee,  and  to  his  heirs  and  assigns  forever." 
The  court  construed  the  deed  as  giving  the  children  an  in- 
terest contingent  upon  their  surviving  their  mother;  only 
such  of  the  children  as  survive  her  could  take  the  estate, 
and  the  interest  of  the  husband  was  held  to  be  a  vested 
remainder  in  fee,  subject  to  the  intervening  contingent 
estate  of  the  children.'  Where  a  deed  contains  the  con- 
dition that  a  person  not  named  as  grantee  "is  to  have  the 
privilege  of  a  support  off  of  said  lands  during  his  lifetime, 
without  encumbrance,"  such  person  has  a  life  estate.  The 
words  '■'without  encumbrance"  mean  w^iLhout  impediment 
to  the  rights  of  the  life  tenant.'  "He  could  not  have  his 
support  off  the  land  without  the  use  and  occupation  of  it. 
The  right  to  such  support  from  the  land  involves  the  use 
and  occupation,  as  without  the  use  and  occupation  he 
could  not  derive  his  support  from  it.  And  it  seems  to  us 
that  a  life  estate  was  as  effectually  conveyed  to  him  as  if 
the  deed  had  provided  that  he  should  have  the  use  and 
occupation,  or  the  rents  and  profits  of  the  land  for  life."^ 
The  obligation  to  support,  when  a  condition  in  a  deed,  is 
generally  regarded  as  a  personal  duty,  which  cannot  be 
transferred  to  another.* 

»  Smith  V.  Block,  29  Ohio  St.  488. 

»  Stout  V.  Dunning,  72  Ind.  343. 

'  Stout  V.  Dunning,  72  Ind.  343,  346,  on  petition  for  rehearing  by 
Wordeu,  J. 

*  Eastman  v.  Batchelder,  36  N.  H.  141 ;  72  Am.  Dec.  295;  Flanders  v. 
Lamphear,  9  N.  H.  201.  For  cases  in  which  instruments  conveying  a 
limited  or  unqualified  estate,  on  the  condition  that  the  grantee  shall 
support  the  grantor,  have  come  before  the  courts,  see  Bryant  v.  Erskine, 
55  Me.  153;  Jenkins  v.  Stetson,  9  Allen,  128;  Marsh  v.  Austin,  1  Allen, 
235;  Hawkins  w.  Clermont,  15  Mich.  511;  Hubbard  w.  Hubbard,  12  Allen, 
586;  Bethlehem  v.  Annis,  40  N.  H.  34;  77  Am.  Dec.  700;  Hoyt  v.  Brad- 
ley, 27  Me.  242;  Rhoades  v.  Parker,  10  N.  H.  83;  Brown  v.  Leach,  35 
Me.  41;  Austin  v.  Austin,  9  Vt.  420;  Soper  v.  Guernsey,  71  Pa.  St.  219; 
Dearborn  v.  Dearborn,  9  N.  H.  117;  Henry  v.  Tupper,  29  Vt.  358;  Wilder 
V.  Whittemore,  15  Mass.  263;  Pettee  v.  Case,  2  Allen,  546;  Thayer  v. 
Richards,  19  Pick.  398;  Fiske  v.  Finke,  20  Pick.  499;  Gibson  v.  Taylor,  6 
Gray,  310;  Dunklee  v.  Adams,  20  Vt.  415;  50  Am.  Dec.  44;  Hill  v.  More, 
40  Me.  515;  Gilson  v.  Gilson,  2  Allen,  J 15;  Daniels  v.  Eisenlord,  10  Mich. 
454;  Tucker  v.  Tucker,  24  Mich.  426;  35  Mich.  365;  Lanfair  v.  Lanfair, 
18  Pick.  299;  Hobby  v.  Bunch,  83  Ga.  1 ;  20  Am.  St.  Rep.  301. 


§  860  PRINCIPLES    OF    CONSTRUCTION.  1174 

§  8G0.  Conveyance  to  wife  and  children. — A  convers- 
ance to  a  woman  and  her  children  makes  them  joint  ten- 
ants or  tenants  in  common/  Thus,  where  a  deed  is  made  to 
a  woman  and  her  children  "to  have  and  to  hold  said  tract 
of  land  to  the  parties  of  the  second  part,  their  heirs  and  as- 
signs forever,"  the  mother  and  children  take  an  undivided 
estate  in  fee  simple.^  "If  others  were  named  in  such 
a  grant  than  the  children,"  said  the  court,  "there  then 
would  be  no  room  for  a  contention,  and  because  the 
word  'children'  is  used,  affords  no  reason  for  inferring 
an  intention  on  the  part  of  the  grantor  to  make  a  dif- 
ferent disposition  of  the  estate  than  the  plain  language 
of  the  instrument  indicated,  and  then  to  reverse  the 
rule  when  applied  to  strangers  for  the  reason  that  such 
a  conveyance  is  susceptible  of  but  one  construction. 
Nor  is  there  any  reason  to  suppose  that  the  draftsman 
would  employ  such  language  in  a  conveyance  when 
the  grantor's  purpose  is  to  give  or  grant  the  estate  to 
the  daughter  for  life,  and  the  remainder  to  her  chil- 
dren. No  one  competent  to  reduce  to  writing  the  sub- 
stance of  an  ordinary  business  transaction  between 
parties  would  overlook  the  wishes  of  the  grantor  in  using 
the  language  found  in  this  deed,  if  his  purpose  was  to 
create  a  life  estate  in  the  daughter,  with  a  remainder  to 
her  children.  Theobjectof  construing  instruments  of  writ- 
ing like  this,  whether  in  a  grant  or  devise,  is  to  ascertain 
the  intention  of  the  party  making,  and  while  the  words 
'for  life'  may  not  be  used  in  the  conveyance,  there  may  be 
other  words  or  expressions,  or  such  relation  between 
the    parties   as    would   indicate  a  plain    intent  to  limit 

^  Brenhain  v.  Davidson,  51  Oal.  352;  Jackson  v.  Coggins,  29  Ga.  403; 
Estate  of  Utz,  43  Cal.  200;  Powell  v.  Powell,  5  Bush,  619;  96  Am.  Dec. 
372;  Mason  v.  Clarke,  17  Beav.  126;  Bustard  v.  Saunders,  7  Beav.  92; 
Eagles  V.  Le  Breton,  Law  R.  15  Eq.  148;  Newell  v.  Newell,  Law  R.  7  Ch. 
253;  Hoyle  v.  Jones,  35  Ga.  40;  89  Am.  Dec.  273;  Webb  v.  Byng,  2  Ka}^ 
&  J.  669;  De  Witte  v.  De  Witte,  11  Sim.  41;  Crockett  v.  Crockett,  2 
Phill.  Ch.  553;  Morgan  v.  Britten,  Law  R.  13  Eq.  28;  Freeman  on  Co- 
tenancy and  Partition,  §  26.  See  McCall  v.  McCall,  1  Tenn.  Ch.  504; 
Doty  V.  Wray,  66  Ga.  153. 

»  Bullock  V.  Caldwell,  81  Ky.  566. 


1175  PRINCirLES    OF    CONSTRUCTION.  §  860 

the  interest  conveyed,  or  to  grant  to  one  in  the  same  in- 
strument a  less  estate  than  to  another."     The  court  said, 
however,  that  in  the  case  before  it,  the  conveyance  was  to 
the  woman  and  her  children,  "with  the  terminous  clause 
*  to  them  and  their  heirs  forever' ;  so  there  is  nothing  on 
the  face  of  the  deed  to  indicate  a  purpose  to  convey  any 
other    than   a  joint  estate  to  the   parties  of  the    second 
part."^     But  in  a  former  case  in  Kentucky,  while  the  rule 
was  recognized  that  a    father  making  provision  for  his 
child  and  that  child's  children,  may  be  supposed  to  have 
intended  them  to  take  a  joint  estate,  yet,  where  he  makes 
provision  for  his  wife  and  children,  it  should  be  presumed 
he  intended   to  give  the  whole  to  the  wife  for  life,  and 
the  remainder  to  the  children,  unless  the  terms  of  the 
provision,  or  the   circumstances   attending  it,  showed  a 
contrary  intention.^     The  reason  that  led   the  court  to 
draw  the  distinction  was,  that  when  a  deed  was  made  to  a 
man's  child  and  that  child's  children,  "  they  are  all  of  his 
blood,  and  the  natural  objects  of  his  bounty;  but  when  a 
husband   makes  a  conveyance  to  his  wife  and  their  chil- 
dren, there  is  less  reason  to  suppose  that  he  intended  they 
should  take  as  joint  tenants,  whereby  his  bounty  may,  by 
her   death,  pass   into   the    hands   of  a    stranger,  even  as 
against  himself."      The    court  continued,  that  no  doubt 
the  grantor  "desired  and  intended   that  his  wife  should 
enjoy  the    property  equally  with    their  children,   but  it 
would  be  unnatural  to  suppose  that  he  intended  to  invest 
her  with  an  estate  which  might  pass  from  her  to  strangers 
to  his  blood.      This  case  serves  to   illustrate    the    utter 
unreasonableness  of  applying  to  every  deed  or  will  the 
same  rule  of  construction  with  a  view  to  ascertain  the 
intention  of  the  grantor."^     A  conveyance  to  a  woman 
"and  all  the   children   she  now  has  or  ever  will  have," 
was    construed    in     Missouri    as    vesting   a    life    estate 
in   the    mother,    with    remainder   to    the    children.*     In 

1  In  Bullock  V.  Caldwell,  81  Ky.  566. 

»  Davis  V.  Hardin,  80  Ky.  672. 

»  Davis  ?;.  Hardin,  80  Ky.  672. 

*  Kinney  v.  Matiiews,  69  Mo.  520.     But  in  this  case,  Henry,  J.,  dis- 


§  8G0  PRINCIPLES    OF    CONSTRUCTION,  1176 

Georgia,  where  a  deed  conveyed  property  for  the  use 
of  a  woman  and  "the  children  she  now  has,  and  those  she 
may  hereafter  have  by  her  present  husband,  free  from  the 
control  or  disposition  of  her  present  husband,"  the  haben- 
dum clause  stating  that  the  conveyance  was  to  her  and 
her  assigns,  the  court  held  that  she  took  a  joint  interest 
with  her  children/  Where  a  deed  is  made  by  a  person 
in  trust  for  his  married  daughter  "and  the  heirs  of  her 
body,  for  their  support  and  the  support  of  her  children, 
and  at  the  lawful  age  of  her  youngest  child,  after  her 
death,  then  the  property  to  be  equally  divided  among  her 
children,"  the  deed  creates,  in  Alabama,  a  life  estate  in 
the  daughter  with  remainder  to  her  children  as  pur- 
chasers.^ 

sen  ted,  being  of  the  opinion  that  all  of  the  estate  of  the  grantor  passed 
out  of  him  and  vested  in  the  mother  and  her  children  then  living. 

1  Lee  V.  Tucker,  56  Ga.  9. 

*  May  V.  Ritchie,  65  Ala.  602.  "The  whole  structure  of  the  deed," 
paid  Mr.  Chief  Justice  Brickell,  "clearly  indicates  that  it  was  drawn  by 
one  not  skilled  in  drawing  such  instruments,  unacquainted  with  their 
forms,  and  unacquainted  with  the  meaning — the  technical  meaning  and 
force — of  the  expressions  employed.  The  indiscriminate  use  of  the 
words  'heirs  of  the  body,'  and  of  the  word  'children,'  to  designate  the 
same  class  of  persons,  is  a  marked  manifestation  of  unskillfulness,  and 
the  want  of  knowledge  of  the  difference  in  the  legal  meaning  of  the  terms. 
The  words  'heirs  of  the  body,'  unexplained,  unrestricted,  certainly  creat- 
ed an  estate  tail  at  common  law.  They  were  the  appropriate  words  for 
the  creation  of  that  estate,  limited  to  lineal  descendants  generally,  as 
was  the  general  term  'heirs,'  to  the  creation  of  a  fee  simple,  a  pure  in- 
heritance, clear  of  qualification  or  condition,  to  which  whoever  was  the 
heir  of  the  first  taker  at  the  time  of  his  death,  whether  lineal  or  collateral, 
would  succeed.  But  whenever  it  was  apparent  on  the  face  of  the  instru- 
ment creating  an  estate  that  either  of  these  terms,  'heirs,'  or  'heirs  of 
the  body,'  was  employed,  not  as  words  of  limitation,  but  as  words  of 
purchase,  as  words  designating  a  particular  class,  who  were  to  take,  not 
from  or  through  an  ancestor,  but  from  the  grantor  or  devisor,  they  did 
not  create  either  a  fee  simple  or  a  fee  tail.  The  grantor  fiives  the 
daughter  an  estate  for  life  only  in  express  terms.  It  was  not  intended 
that  she  should  have  or  take  any  greater  estate  or  interest.  But  under 
the  operation  of  the  rule  in  Shelley's  case,  of  force  when  the  deed  was 
executed,  a  gift  to  one  for  life,  and  then  to  the  'heirs  of  his  body,'  would 
create  an  estate  tail ;  the  words  'heirs  of  the  body'  being,  in  their  nat- 
ural and  ordinary  signification,  words  of  limitation  and  not  of  purchase. 
The  word  'children,'  however,  is  as  essentially  a  word  of  purchase,  and 
never  construed  as  a  word  of  limitation,  unless  absolutely  necessary  to 


1177  PRINCIPLES    OF    CONSTRUCTION.  §  861 

§  861.      Relation    from    re-execution    of   lost    deed. — 

Where  a  deed  once  executed  has  beeu  lost  and  the  grantor 
executes  a  second  deed,  it  may,  in  some  instances,  become 
necessary,  when  the  rights  of  intervening  creditors  are 
involved,  to  determine  whether  the  second  deed  takes 
effect  from  the  date  of  its  execution,  or  whether  it  relates 
back  to  the  time  of  the  first  deed.  Such  a  case  arose  in 
North  Carolina.  A  father  executed  deeds  of  gift  to  A 
and  B,  his  two  sons.  The  deed  made  to  A  was  lost  before 
it  was  registered.  Subsequently  B  conveyed  his  land  to 
A,  and  the  father  executed  a  deed  to  B  for  the  land  which 
had  originally  been  conveyed  to  A  in  substitution  for  the 
deed  which  had  been  lost.  In  this  second  deed  he  pro- 
vided that  he  was  to  retain  ''possession  of  the  above  de- 
scribed lands  and  premises  during  his  natural  life,  or  so 
long  as  he  may  desire  it  for  his  own  use  and  benefit." 
The  court  decided  that  if  the  original  deeds  to  A  and  B 
were  valid  as  to  creditors  when  they  were  executed,  no 
subsequent  exchange  between  them  affected  the  rights  of 
creditors;  and  although  the  last  deed  contained  a  reserva- 
tion of  a  life  estate,  that  it  related  back  to  the  date  of  the 
lost  deed.^  The  reasoning  of  the  court  was  that  if  the 
grantee  in  the  last  deed  could  set  up  the  lost  deed  in  a 

give  effect  to  the  clear  intention  of  the  grantor  or  devisor:  Dunn  v. 
Davis.  12  Ala.  135;  Scott  v.  Nelson,  3  Port.  452;  29  Am.  Dec.  266.  And 
whenever  the  word  'children,'  and  'heirs  of  the  body,'  are  indiscrim- 
inately used  to  designate  remaindermen,  they  have  been  regarded  aa 
words  of  purchase,  designating  a  class  of  persons  who  were  to  take  on 
the  expiration  of  the  particular  estate,  not  from  the  tenant  of  that  estate, 
but  from  the  donor,  a  different  intention  not  being  clearly  indicated: 
Dunn  V.  Davis,  12  Ala.  135;  Shepherd  v.  Nabors,  6  Ala.  631 ;  Twelves  v. 
Nevill,  39  Ala.  175;  Robertson  v.  Johnson,  30  Ala.  197;  Williamson  v. 
McConico,  36  Ala.  22.  If  the  estate  for  life,  expressly  given  to  the 
daughter,  were  enlarged  into  an  estate  tail,  converted  by  the  statute 
into  a  fee  simple,  it  is  apparent  the  intention  of  the  donor,  which  ought 
to  prevail,  so  far  as  it  is  not  offensive  to  law,  would  be  disai)i.ointed  and 
defeated.  The  gift  over  to  the  children,  the  division  of  the  property 
among  them,  after  the  death  of  the  mother,  when  the  youngest  became 
of  age,  would  fail.  We  cannot  doubt  that  the  words  'heirs  of  tlie  body' 
were  used  as  the  synonym  of  'children' ;  and  being  so  used,  the  first 
taker  had  but  a  life  estate,  with  remainder  to  her  children." 
'  Hodges  V.  Spicer,  79  N.  C.  223. 


§  862  PRINCIPLES    OF    CONSTRUCTION.  1178 

court  of  equity,  aud  compel  the  grantor  to  execute  another 
deed,  the  grantor  might  voluntarily  do  what  in  equity  he 
could  he  forced  to  do. 

§  863.  Water  power. — A  peculiar  case,  involving  the 
rights  of  different  parties  to  determinable  portions  of 
water  used  for  propelling  machinery,  may  be  selected  as 
illustrating  the  observation  that  each  case  must,  in  a 
great  measure,  be  decided  by  itself.  In  the  case  referred 
to,  the  owner  of  property  on  which  were  two  mills,  pro- 
pelled by  power  obtained  from  the  water  of  a  contigu- 
ous river,  sold  a  portion  of  the  property  on  which  was 
situated  one  of  the  mills.  The  deed,  after  describing  the 
property,  granted  the  right  to  use  water  by  this  clause: 
"  Together  with  the  right  to  use  water  to  the  amount  of 
the  issue  of  the  wheel  now  in  said  sawmill,  supposed  to 
be  six  hundred  inches,  more  or  less,  of  water,  being  hereby 
intended  to  grant  or  convey  so  much  of  the  water  of  the 
Wapsipinicon  river  as  above  mentioned."  The  construc- 
tion put  upon  this  deed  was  that  the  amount  of  water 
to  which  the  grantee  was  entitled  was  to  be  measured  by 
the  capacity  of  the  wheel  in  the  mill  at  the  time  of  the 
conveyance;  that  the  quantity  of  water  mentioned  in  the 
deed  was  used  by  way  of  description,  and  not  of  limita- 
tion; and  that  the  grantee  might  put  in  operation  as 
many  wheels  as  he  desired,  so  long  as  he  did  not  use  in 
the  aggregate  more  water  than  the  issue  of  one  wheel 
originally  in  the  mill.^     An  easement  in  the  millpond  is 

^  Doan  V.  Metcalf ,  46  Iowa,  120.  The  opinion  of  the  court  was  de- 
livered by  Mr.  Justice  Beck.  As  the  case  is  a  peculiar  one,  we  quote  his 
language  so  far  as  it  relates  to  the  construction  of  the  deed :  "  It  is  obvi- 
ous that  it  was  intended  to  convey  sufficient  water  to  propel  the  wheel 
described,  when  used  in  driving  the  machinery  which  it  had  the  capacity 
to  run.  The  dimension  and  structure  of  the  wheel  were  such  that,  with 
a  sufficient  supply  of  water,  it  had  capacity  to  propel  a  known  quantity 
of  machinery,  or,  rather,  a  quantity  that  may  be  determined  under  the 
laws  of  dynamics.  It  was  not  the  intention  of  the  parties  that  the 
wheel  should  be  run  without  machinery  attached  thereto,  nor  that  it 
should  be  run  with  less  machinery  than  it  had  capacity  to  propel,  when 
used  to  the  extent  of  the  right  conveyed  by  the  deed.  The  defendants, 
then,  took  by  the  grant  the  right  to  a  stream  of  water  sufficient  to  propel 


1179  PRINCIPLES    OF    COXSTKUCTION.  §  862 

embraced   in  the  grant  of  a  "dam."^     If  the  grantee  is 
entitled  to  the  privilege  of  drawing  water  from  other  por- 

the  quantity  of  machinery  which  could,  in  its  proper  operation,  be 
moved  by  the  wheel  in  use  at  the  date  of  the  deed.     The  wheel  thus 
becomes  the  instrument  for  measuring  the  quantity  of  water  to  which 
defendants  are  entitled.     It  is  very  plain  that  this  quantity  is  not  to  be 
limited  to  six  hundred  inches,  for  the  very  language  of  the  instrument 
exhibits  uncertainty  in  the  minds  of  the  contracting  parties  as  to  that 
number,  which  was  used  simply  in  description  of  the  wheel  which  was 
to  be  the  measure  of  the  water  granted.     If  this  description  be  incorrect 
or  fail,  the  thing  meant,  the  wheel,  if  it  can  be  identified,  will  control  as 
to  its  capacity,  rather  than  words  clearly  used  with  the  understanding 
and  admission  on  the  part  of  both  parties,  of  their  uncertainty.     We  are 
not  required  here  to  determine  upon  the  methods  and  formulas  of  ma- 
chinists, whereby  they  measure  water  power  by  superficial  inches,  or  to 
make  any  inquiry  upon  that  subject.     Such  methods  and  formulas,  it 
appears  by  the  evidence,  are  used.     It  is  quite  apparent  that  a  water 
wheel  of  given  dimension,  propelling  its  proper  quantity  of  machinery, 
will  use  a  determinable  quantity  of  water,  all  necessary  conditions,  as 
the  height  of  the  head  of  water,  etc.,  being  known.     This  water  issues 
from  the  wheel,  and  is,  therefore,  aptly  called  in  the  deed  '  the  issue  of 
the  wheel.'     A  great  deal  of  learning  and  experience  were  exhibited  by 
the  witnesses  at  the  trial,  upon  the  subject  of  the  methods  and  formulas 
to  be  ado{)ted  in  determining  the  quantity  of  water  used  by  wheels  of 
different  constructions.     We  may  be  permitted  to  say  that  some  of  the 
methods  explained  in  the  testimony  were  rather  arbitrary  than  based 
upon  scientific  principles.     This  remark,  we  think,  will  be  justified,  when 
we  call  attention  to  the  fact  that  by  some  of  them  the  quantity  is  indi- 
cated by  superficial  inches,  without  taking  note  of  time  or  the  velocity 
of  the  water.     But  we  are  satisfied,  and  this  conclusion  is  drawn  from 
the  evidence  in  this  case,  that  the  issue  of  water  from  a  wheel  may  be 
determined,  proximately  at  least,  with  suflicient  accuracy  for  practical 
purposes.     Experience  and  mechanical  skill,  aided  by  the  laws  of   hy- 
draulics, may  reach  such  result.     We  are  not  required,  in  view  of  the 
disposition  we  shall  make  of  the  case,  to  determine  now  the  manner 
or  methods  to  be  adopted  in  ascertaining  the  issue  of  the  wheel  which 
is  made  the  measure  of  the  quantity  of  water  granted  to  defendants. 
Those  charged  with  the  duty  of  setting  apart,  or  otherwise  prescribing 
the  quantity  of  water  to  which  the  defendants  are  entitled,  will  do  this. 
We  make  one  suggestion  that  readily  occurs  to  the  mind  in  considering 
the  provisions  of  the  grant.     The  defendants,  as  we  have  said,  are  en- 
titled to  a  sufficient  supply  of  water  to  run  the  wheel  with  the  proper 
quantity  of  machinery  attached  tliereto.     This  quantity  may  vary  with 
the  head  of  water  in  the  flume  or  dam,  and,  conpcquently,  with  the  va- 
riation of  water  in  the  stream.     If  this  be  so,  due  account  must  be  made 
of  the  fact,  so  that  defendants,  at  all  times,  when,  under  the  contract, 

1  Maddox  v.  Goddard,  15  Me.  218;  33  Am.  Dec.  604;  IJutchinoon  v. 
Chicago  Ky.  Co.,  37  Wis.  582;  Sabine  v.  Johnson,  35  Wis.  185. 


§  803  riuNCiPLns  of  constuuction.  1180 

tioiis  of  the  j^riintor's  laml,  wliicli  were  then  in  use,  as 
appurtenant  to  the  hind,  and  if  water  is  conveyed  in  an 
aciuechu't  from  a  sprinj^  upon  another  part  of  the  grant- 
or's hind  to  tlieland  emhraced  in  the  deed,  and  there  used 
at  the  time  at  which  the  deed  was  executed,  the  grantor 
cannot  divert  the  water,  although  he  does  so  upon  a  part  of 
liis  laud  not  conveyed  by  the  deed;  such  a  diversion  would 
be  a  disturbance  of  the  grantee's  right,  for  which  he  can 
bring  an  action.'  It  is  no  defense  in  such  a  case  that  the 
grantee  did  not  desire  to  use  the  water,  or  that  by  the  di- 
version he  has  suffered  no  actual  damage.'^ 

§  86J5.  Appurtenances  and  incidents. — The  grant  of  "a 
well"  includes  the  land  occupied  by  it.^     The  grant  of  a 

tliey  are  entitleii  to  the  full  quantity  of  water,  may  use  the  amount 
necessary  to  propel  the  machinery.  If,  therefore,  the  water  for  defend- 
ants' mill  be  set  apart  by  gates  or  bulkheads  in  the  flume,  due  arrange- 
ments must  be  provided  to  meet  this  condition.  But,  in  our  judgment, 
the  just  and  more  simple  manner  of  partitioning  the  water  is  by  meana 
of  the  water  wheels  used  by  defendants.  Lat  the  quantity  of  water  is- 
sued by  the  old  wheel  be  determined;  the  water  issued  by  the  wheels 
in  use  by  defendants  must  be  no  more,  and  the  wheels  to  be  used  by 
defendants  must  require  no  more  water  than  did  the  old  wheel.  Defend- 
ants may  desire  to  use  machinery  wiiich  would  require  the  construction 
of  other  water  wheels  tlian  those  he  is  now  using.  There  can  be  no 
objection  to  his  doing  so,  but  he  can  use  at  no  time  a  greater  quantity  of 
water  than  indicated.  Therefore,  he  will  not  be  permitted  to  run  wheels 
at  the  same  time  which  actually  use  a  greater  quantity.  Wheels  may 
be  idle  when  not  used  as  directed  by  those  rules." 

1  Vermont  Central  R.  R.  Co.  v.  Estate  of  Hills,  23  Vt.  681. 

»  Vermont  Central  R.  R.  Co.  v.  Estite  of  Hills,  23  Vt.  681.  For  other 
cases  involving  water  rights,  see  Barber  v.  Nye,  65  N.  Y.  211 ;  Canal  Co. 
V.  Hill,  15  Wall.  94;  Taylor  v.  St.  Helens,  6  Chip.  D.  264;  Robinson  v. 
Imperial  Silver  Min.  Co.,  5  Nev.  44;  Kilgore  v.  HaHcall,  21  Mich.  502; 
De  Witt »'.  Harvey,  4  Gray,  486;  Schuylkill  Navigation  Co.  v.  Moore,  2 
AVhart.  477  ;  Mayor  v.  CommisisiDiiers,  7  Pa.  St.  348;  Society  v.  Holsman, 
1  Hal.st.  Ch.  126;  Williams  v.  Baker,  41  Md.  523;  Ashby  v.  Eastern  R.  R. 
Co.,  5  Met.  368;  38  Am.  Dec.  426;  Johnson  v.  Rayn-r,  6  Gray.  107;  Pratt 
V.  Lamson,  2  Allen,  275;  Bard  well  v.  Ames,  22  Pick.  333;  Woodcock  v. 
Estey,  43  Vt.  515;  Jamaica  Pond  Aqueduct  v.  Oiiandler,  9  Allen,  159; 
Owen  V.  Field,  102  Mass.  90;  Jackson  v.  Halstead,  5  Cowen,  216;  Mixer 
('.  Reed,  25  Vt.  254;  Sheets  v.  Seldeii,  2  Wall.  177;  Wiswall  r.  Hall,  3 
Paige,  313.  See,  also,  Egremont  V.Williams,  11  Q.  B.  707;  Buszard  v. 
Capel,  8  Barn.  &  0.  141  ;  Smith  v.  New  York,  68  N.  Y.  552;  Goodrich  v. 
Eastern  R.  R.  Co..  37  N.  H.  149. 

^  Mixer  v.  Reed,  25  Vt.  254.     See  in  the  case  of  a  grant  of  a  "pool" 


1181  PRINOll'LKS    or    CONSTRUCTION.  §  S()3 

tract  of  land  passes  everything  standing  or  growing  upon 
the  land/  Other  land  cannot  be  considered  as  appurte- 
nant to  the  land  granted.^  The  grant  of  a  sawmill  with 
appurtenances  passes  the  machinery  in  the  mill.'  In 
brief,  a  deed  in  general  terms  passes  everything  whicdi 
is  a  constituent  part  of  the  thing  granted.''  A  water 
right  will  pass  as  appurtenant  to  the  land/'  A  right  of 
way  passes  when  the  land  convoyed  is  surrounded  by 
other  lands  of  the  grantor."  Ihit  in  order  that  the 
grantee  may  have  this  right  of  way,  the  way  must  be  one 
of  necessity  and  not  of  convenience.^     A  grant  of  a  house 

or  a  "pit,"  Whitney  v.  Olney,  3  Mason,  282;  .lolinson  v.  Ilayiicr,  0  (Jriiy, 
107;  Wooley  w.  Groton,  2  Cuah.  305. 

'  Cook  V.  Wliitinj,',  1<)  III.  481 ;  Brackett  v.  (I()(l<lanl,54  Me.  313;  Gooil- 
richt).  Jones,  2  Hill,  142.  See,  also.  Mott  v.  I'alnior,  1  N.  Y.  304;  Ter- 
hnne  v.  Eiberson,  2  N.  J.  L.  72(5;  Mcllvaiie  v.  Ihirrin,  2t)  Mo.  457;  64  Am. 
Dec.  190;  Foote  v.  Colvin,  3  Jolins.  2H);  3  Am.  Dec.  478;  Cliapman  v. 
Lonp;,  10  Ind.  465;  KittredKC  v.  Woods,  3  N.  II.  503;  14  Am.  Dec.  3113. 

»  Jackson  d.  Yates  v.  Hatliaway,  15  Jolins.  447;  8  Am.  Dec.  203; 
Leonard  v.  White,  7  Mass.  6;  5  Am.  De;.  19;  Riddle  v.  Littlcfiuld,  53 
N.  H,  503;  16  Am.  Rep.  388;  Harris  v.  Elliott,  10  Peters,  25;  iilainc?  v. 
Chambers,  1  Serg.  &  R.  169;  Ammidown  v.  Granite  Bank,  8  Allen,  2i)3; 
Tyler  v.  Hammond,  11  Pick.  193. 

'  Farrar  v.  Stackpole,  6  Me.  154;  19  Am.  Dec.  201.  Hee  Sparks  v. 
Hess,  15  Cal.  186. 

♦  Wilson  V.  Hunter,  14  Wis.  684;  80  Am.  Dec.  795;  Cave  v.  Oafts,  53 
Cal.  135;  Farrar  v.  Slackpole,  6  Mc  154;  19  Am.  Dec.  201.  See  Elliott  v. 
Carter,  12  Pick.  436;  Jamen  v.  Plant,  5  Ad.  fi  10.  479;  McDonald  v.  Mc- 
Elroy,  60  Cal.  484;  Sparks  v.  Hess,  15  Cal.  186. 

»  Farmer  v.  Ukiah  Water  Co.,  56  Cal.  11.  ili[)arian  rij,'l)ts  are  appur- 
tenant to  laml:  Alta  Land  etc.  Co.  v.  Hancock,  85  Cal.  219;  20  Am.  St. 
Rep.  217.  Where  the  rit;ht  to  the  use  of  a  ditch  and  water  exists  in  favor 
of  land,  is  an  essential  i)art  of  the  value  of  the  land,  and  perhaps  is  the 
Bole  inducement  to  purchase,  it  passes  l)y  the  deed  whether  the  word 
"appurtenances"  he  usc^d  or  not:  Simmons  v.  Winters,  21  Or.  35;  28  Am. 
Ht.  Rep.  727.  A  water  rit,'ht  acquinsd  and  used  for  a  heiu)(i(!ial  puri)()He 
in  connection  with  land  is  an  appurtenance  and  is  transftured  by  the 
deed  unless  reserved:  Bweetland  v.  Olson,  11  Mont.  27;  Crooker  v.  Ben- 
ton, 93  Cal.  365. 

•  Collins  w.  Prentice,  15  Conn.  39;  38  Am.  Dec.  61  ;  Taylor  v.  Warnaky, 
65  Cal.  3.50.  Bee  Re>,'an  v.  Boston  Gaslij^ht  Co..  137  Mass.  37  ;  Haven  v. 
Seeley,  69  Cal.  494;  Reed  v.  Spic(!r,  27  Cal.  27.  See  as  to  dedication  of 
road,  Dea(;on8  v.  Doyle,  75  Va.  258;  Patton  w.  Quarrier,  18  W.  Va.  447. 

'  Nichols  V.  Luce,  24  Pick.  102;  35  Am.  Dec.  302;  Carey  v.  Rao,  58 
Cal.  IW.     If  the  way  already  exints,  it  will  pass  as  an  appurtenant  case- 


I   863  PRINCIPLES    OF    CONSTRUCTION.  1182 

includes  the  land  under  it/  A  grant  or  reservation  "of 
tlie  whole  of  a  ciderhouse  and  cidermill  standing  on 
land,  so  long  as  the  said  ciderhouse  shall  stand  thereon, 
and  no  longer,"  passes  a  freehold  in  the  land  on  which 
the  building  stands,  even  though  it  has  ceased  to  be  used 
as  a  ciderhouse.^  "The  general  rule  of  law  is,  that 
when  a  house  or  store  is  conveyed  by  the  owner  thereof, 
everything  then  belonging  to,  and  in  use  for  the  house  or 
store,  as  an  incident  or  appurtenance,  passes  by  the  grant. 
It  is  implied  from  the  nature  of  the  grant,  unless  it  con- 
tains some  restriction,  that  the  grantee  shall  possess  the 
house  in  the  manner,  and  with  the  same  beneficial  rights, 
as  were  then  in  use  and  belonged  to  it.  The  question 
does  not  turn  upon  any  point  as  to  the  extinguishment  of 
any  pre-existing  rights  by  unity  of  possession.  But  it 
is  strictly  a  question,  what  passes  by  the  grant.  Thus,  if 
a  man  sells  a  mill,  which  at  the  time  has  a  particular 
stream  of  water  flowing  to  it,  the  right  to  the  water  passes 
as  an  appurtenance,  although  the  grantor  was,  at  tlie 
time  of  the  grant,  the  owner  of  all  the  stream  above  and 
below  the  mill.  And  it  will  make  no  difference  that  the 
mill  was  once  another  person's,  and  that  the  adverse  right 
to  use  the  stream  had  been  acquired  by  the  former  owner, 
and  might  have  been  afterward  extinguished  by  unity  of 
possession  in  the  grantor.  The  law  gives  a  reasonable 
intendment  in  all  such  cases  to  the  grant;  and  passes 
with  the  property  all  those  easements  and  privileges 
which  at  the  time  belong  to  it,  and  are  in  use  as  appurte- 
nances."^    The  grantee  is  entitled  to  unaccrued  rent  un- 

ment:  Murphy  r.  Campbell,  4  Pa.  St.  484;  Pope  v.  O'Hara,  48  N.  Y.  455; 
Harris  v.  Elliott,  10  Peters,  25, 

1  Allen  V.  Scott,  21  Pick.  25;  32  Am.  Dec.  238;  Bacon  v.  Bowdoin,  22 
Pick.  410;  Stock  well  v.  Hunter,  11  Met.  455;  45  Am.  Dec.  220.  And  see 
Johnson  v.  Raynor,  6  Gray,  110;  Orawfordsville  v.  Boots,  76  Ind.  32. 
See  Endsley  v.  State,  76  Ind.  467. 

^  Esty  V.  Currier,  98  Mass.  500.  AH  parts  of  a  deed  should  be  consid- 
ered so  that  every  part  may  have  effect :  Herrick  v.  Hopkins,  23  Me.  217; 
Thrall  v.  Newell,  19  Vt.  202;  47  Am.  Dec.  682;  Richardson  v.  Palmer,  38 
N.  H.  212;  Foy  v.  Neal,  2  Strob.  156;  Byrd  v.  Ludlow,  77  Va.  483. 

3  In  United  States  v.  Appleton,  1  Sum.  492,  500. 


1183  PRINCIPLES    OF    CONSTRUCTION.  §  864 

der  a  lease  existing  at  the  date  of  the  deed.  If  the 
grantor  collects  the  rent  hecomiug  due  after  the  execution 
of  the  deed,  he  is  liable  to  the  grantee  in  an  action  for 
money  had  and  received/  All  rent  which  has  accumu- 
lated, and  which  has  not  become  so  disconnected  with  the 
land  as  to  become  personal  property,  will  pass  by  the 
deed.^  A  deed  of  land  conveys  the  buildings  thereon. 
Evidence  of  the  intention  of  the  grantor  is  inadmissible.^ 

§  864.  Construction  of  particular  words. — Manifestly, 
no  general  rule  can  be  laid  down  as  to  the  construction 
of  particular  w^ords.  The  primary  object  courts  have  in 
view  is  to  carry  out  the  intention  of  the  parties.  But  in 
this  connection  it  may  not  be  unprofitable  to  mention 
some  instances  in  which  certain  words  have  been  con- 
strued. Tlie  words  "or"  and  "and"  have  sometimes 
been  construed  so  as  to  give  to  one  its  opposite  meaning.* 
The  word  "appurtenances"  refers  to  things  incidental  to 

1  Van  Wagner  ?'.  Van  Nostrand,  19  Iowa,  422. 

2  Winslow  V.  Rand,  29  Me.  362.     See  §  307. 

*  Isham  V.  Morgan,  9  Conn.  374;  23  Am.  Dec.  361. 

*  Jackson  r.  Topping,  1  Wend.  388;  19  Am.  Dec.  515;  Price  v.  Hart, 
Pol.  645;  Wliite  i;.  Crawford,  10  Mass.  ]83.  See,  also.  Will  d.  Burrill 
V.  Kemp,  3  Term  Rep.  470;  Brittain  v.  Mitchell,  4  Ark.  92;  Chapman  v. 
Dalton,  Plow.  289;  Parker  v.  Carson,  64  N.  C.  5H3.  But  see  Diunont  v. 
United  States,  98  U.  S.  143;  Tliomas  v.  Perry.  Peters  C.  C.  56.  These 
words  are  olten  interchanged  in  the  construction  of  wills.  See  Miles  v. 
Dye;-,  5  Sim.  4.J5;  China  v.  White,  5  Rich.  Eq.  426;  Kindigv  Deardorff, 
39  li;.  300;  Welsh  v.  Elliott,  7  Serg.  &  R.  279;  Johnson  v.  Simcox,  31 
Law  J.  Ex.  38;  6  Hurl.  &  N.  6;  7  Jur.,  N.  S.,  349;  Brewer  v.  Opie,  1  Call, 
2  2;  Den  d.  Dickenson  v.  Jordan,  1  Murph.  380;  Parker  v.  Parker,  5 
Met.  134;  Tennell  /•.  Ford,  30  Ga.  707;  Holcomb  t;.  Lake,  24  N.  J.  L. 
680;  Brooke  v.  Croxton,  2  Gratt.  506;  Bostick  v.  L.vwton,  1  Spear,  258; 
Thompson  v.  Teulon,  22  L.  J.  Ch.  243;  Weddell  v.  Mun<ly,  6  Ves. 
341;  Richardson  v.  Spraag,  IP.  Wms.  434;  Parkin  /;.  Knight,  15  Sim.  83; 
Montagu  v.  Kucella,  1  Russ.  165;  Harris  v.  Davis,  1  Coll.  416;  Maynanl 
V.  Wright,  26  Beav.  285;  Long  v.  Dennis,  4  Burr.  2052;  Den  .1.  Brown 
V.  Mugway,  15  N.  J.  L.  330;  Green  v.  Harvey,  1  Hare,  428;  Greated  v. 
Greated,  26  Beav.  621;  Law  v.  Thorp,  2)  Law  J.  Ch.  75;  1  Jur.,  N.  S., 
1082;  Bently  v.  Meecii,  25  Beav.  197.  So  in  the  case  of  statutes,  see 
Commonwealth  v.  Griirin,  105  Ma.ss.  185;  O'Connell  v.  Gillespie,  17  Ind. 
459;  Hughes  v.  Smith,  64  N.  C.  4J4;  State  «.  Pool,  74  N.  C.  4u2;  Boag  v. 
Lewis,  1  Up.  Can.  Q.  B.  357;  Streeter  v.  People,  59  111.  595;  Boyles  v. 
McMurphy,55ill.236;  Townsend  i;.  Read,  10  Com.  B.,  IS.  S.,  308;  People 


§  861:  PKINCIPLES    OF    CONSTRUCTION.  1184 

the  land  convoyed.  It  does  not  include  other  land.'  In 
the  premises  of  a  deed,  the  word  ''also"  signifies  "like- 
wise; in  like  manner;  in  addition  to;  denotes  that  some- 
thing is  added  to  what  precedes  it."^  The  words  "have 
granted"  are  equivalent  in  signification  to  the  words  "do 
hereby  grant." ^  If  the  expression  "from"  or  "to"  an 
object  is  used,  the  terminus  is  not  included.*  Where  a 
deed  is  made  to  a  person,  her  heirs  and  assigns,  with  a 
hahendum  to  her  sole  and  separate  use,  free  from  the  con- 
trol or  interference  of  any  husband  she  may  have,  and  to 
the  use  of  "heir  heirs  and  assigns  forever,"  the  word 
"heir"  will  be  taken  as  a  clerical  mistake  for  "her."'' 
The  term  "sedge  flat"  imports  a  tract  of  land  below  high- 
water  mark.^  If  a  grantor  uses  the  words  "reversion  and 
remainder"  in  a  grant  of  land  for  a  public  highway,  he 
retains  nothing  which  he  can  afterward  convey,  the 
grantee  taking  the  reversionary  right.^  By  a  grant  "of 
the  use  of  the  timber,"  an  incorporeal  right  to  use  the 
timber  only  is  conveyed.  Title  to  the  soil  does  not 
pass.*  The  word  "adjacent"  signifies  "in  the  neighbor- 
hood of."^  "All  the  property  I  possess,"  used  in  a  con- 
veyance, includes  all  the  property  owned  by  the  grantor, 

v.  Sweetser,  1  Dakota,  308 ;  States.  Myers,  10  Iowa,  448;  State  v.  Brandt, 
41  Iowa,  593 ;  Eisfield  v.  Kenworth,  50  Iowa,  389 ;  Sparrow  v.  Davidson 
College,  77  N.  C.  35 ;  Porter  v.  State,  58  Ala.  66  j  Ferrell  v.  Lamar,  1  Wis. 
19. 

*  Otis  V.  Smith,  9  Pick.  293;  Helme  v.  Guy,  2  Murph.  341.  See  Hill 
V.  West,  4  Yeates,  142;  Harris  v.  Elliott,  10  Peters,  25;  Worthington  v. 
Gimson,  2  El.  &  E.  618;  Plant  v.  James,  2  Nev.  &  M.  517;  6  Nev.  &  M. 
282;  4  Ad.  &  E.  749;  5  Barn.  &  Adol.  791;  Evans  t;.  Angell,  26  Beav. 
205 ;  Barlow  v.  Rhodes,  1  Cromp.  &  M.  205. 

'^  Panton  v.  Tefft,  22  111.  366. 

^  Pierson  v.  Armstrong,  1  Iowa,  282:  63  Am.  Dec.  440. 

*  Bonney  v.  Morrill,  52  Me.  252.  By  the  expression  "  from  a  street," 
is  not  necessarily  meant  from  its  nearest  line :  Pittsburg  v.  Gluley,  74 
Pa.  St.  259. 

*  Huntington  v.  Lyman,  138  Mass.  205. 

*  Church  V.  Meeker,  34  Conn.  421. 
'  Vaughn  v.  Stuzaker,  16  Ind.  338. 
«  Clark  V.  Way,  11  Rich.  621. 

*  Henderson  v.  Long,  Cooke,  128. 


1185  PRINCIPLES    OF    CONSTRUCTION.  §  864 

in  remainder  as  well  as  in  immediate  occupation/  The 
word  "convey,"  in  a  deed,  will  pass  the  title.  It  is 
equivalent  to  a  grant.^  By  the  use  of  the  term  "rope- 
walk,"  such  land  as  is  exclusively  devoted  to  a  rope- 
walk  will  pass.^  Where  land  is  conveyed  "  with  all 
the  buildings,  ways,  privileges,  and  appurtenances  to  the 
same  belonging,"  any  easement  or  appurtenances  already 
existing  and  belonging  to  the  land  will  pass."*  But  this  is 
not  appropriate  language  to  create  a  new  appurtenance  or 
easement.^  Title  to  property  will  pass  by  the  use  of  the 
words  "go  to"  in  a  conveyance.^  The  word  "quit"  is 
equivalent  in  legal  effect  to  "  sell  "  or  "  release."  ^  The 
word  "by,"  used  descriptively,  means  "near"  to  the  ob- 
ject to  which  it  relates,  and  not  "in  immediate  contact 
with,"  and  "  near"  is  a  relative  term.®  The  termini  are 
not  included  when  the  word  "  between"  is  used.^  A  free- 
hold may  be  conveyed  by  the  use  of  the  words  "assign 
and  make  over."^°  If,  by  a  deed,  a  trust  is  created  for  the 
benefit  "  of  the  present  as  well  as  the  future  heirs"  of  a 
person,  the  word  "  heirs"  will  be  taken  to  mean  "  chil- 
dren," as  there  can  be  no  heirs  of  a  person  until  after 
his  death/^     Where   a  deed  is  made  to  A,  "  and  to  the 

1  Brantly  v.  Kee,  5  Jones  Eq.  332. 

*  Patterson  v.  Carneal,  3  Marsh.  A.  K.  618;  13  Am.  Dec.  208;  Lam- 
bert V.  Smith,  9  Or.  185. 

»  Davis  V.  Handy,  37  N.  H.  65. 

*  Kenyon  v.  Nicliols,  1  R.  I.  411. 
^  Kenyon  v.  Nichols,  supra. 

«  Folk  V.  Varn,  9  Rich.  Eq.  303. 
"<  Gordon  v.  Haywood,  2  N.  H.  402. 
8  Wilson  V.  Inloes,  6  Gill,  121. 

*  Revere  v.  Leonard,  1  Mass.  91. 

"  Hutchins  v.  Carleton,  19  N.  H.  487.  Said  the  court:  '"Assign  and 
make  over'  are  as  effectual,  when  a  good  consideration  is  expressed,  as 
'  quit  my  claim,'  or  many  other  forms  that  have  heen  sanctioned  as  suf- 
ficient to  raise  a  use  or  pass  an  estate":  See  Jackson  v.  Alexander,  3 
Johns.  484;  3  Am.  Dec.  517. 

"  Read  v.  Fite,  8  Humph.  328.  See  Tucker  v.  Tucker,  78  Ky.  503; 
Twelves  v.  Nevill,  39  Ala.  175.  For  instances  in  which  the  courts  have 
Baid  that  the  word  "  heirs"  was  necessary  to  create  a  fee,  or  liave  con- 
strued the  term,  see  Jarvis  v.  Quigley,  10  Mon.  B.  104  ;  Cromwell  v.  Win- 
chester, 2  Head,  389;  Daffum  i;.  Hutchinson,  1  Allen,  58;  Baker  v.  Hunt, 
Deeds,  Vol.  11.  —  75 


§   804  PRINCIPLES    OF    CONSTRUCTION.  1186 

children  of  said  A,  and  assigns  forever,"  the  children  of 
the  grantee,  born  subsequently  to  the  execution  of  the 
deed  do  not  take  an  interest  in  the  land.'  The  words 
"all  mineral  or  magnesia"  of  any  kind,  occurring  in  a 
reservation  in  a  deed,  include  chromate  of  iron  subse- 
quently found  upon  the  land.^  The  water  power  appur- 
tenant to  a  mill  will  pass  under  the  term  "appurtenances." 
It  is  not  necessary  to  use  the  word  "privilege,"  although 
it  may  have  been  used  in  the  precedent  contract  of  sale.* 
But  an  entire  railroad  will  not  pass  to  another  railroad 
by  the  use  of  the  word  "appurtenance"  only.*  The  words 
"and  all  the  buildings  thereon,"  occurring  in  a  conve}''- 
ance  of  land,  are  superfluous,  and  have  no  legal  operation.^ 
Concerning  the  word  "about,"  in  describing  the  length 
of  a  line,  Weston,  J.,  said:  "  By  the  use  of  the  term  '  about,' 
it  may  be  understood  that  direct  precision  in  the  length 

40  111.  264;  89  Am.  Dec.  346;  Williams  v.  Allen,  17  Ga.  81;  Calmes  v. 
Buck,  4  Bibb,  453;  Kay  v.  Connor,  8  Humph.  624;  49  Am.  Dec.  690;  Lei- 
tensdorfer  v.  Delphy,  15  Mo.  160 ;  55  Am.  Dec.  137 ;  Young  v.  Marshall, 
Hill  &  D.  Sup.  93;  Roberts  v.  Forsyth,  3  Dev.  26.  For  cases  in  which 
the  words  "more  or  less"  have  been  construed,  see  Tyson  v.  Hardesty, 
29  Md.  305;  Blaney  v.  Rice,  20  Pick.  62;  32  Am.  Dec.  204;  Brady  v.  Hen- 
nion,  8  Bosw.  528;  Phipps  v.  Tarpley,  24  Miss.  597 ;  Gentry  v.  Hamilton, 
3  Ired.  Eq.  376;  Hoffman  v.  Johnson,  1  Bland,  103;  Baynard  v.  Eddings, 
2  Strob.  374;  Hunt  v.  StuU,  3  Md.  Ch.  24;  Sullivan  v.  Ferguson,  40  Mo. 
79;  Nelson  v.  Matthews,  2  Hen.  &  M.  164;  3  Am.  Dec.  620;  Poague  v. 
Allen,  3  Marsh.  J.  J.  421 ;  Davis  v.  Sherman,  7  Gray,  291 ;  Ship  v.  Swan, 
2  Bibb,  82.  If  it  appears,  from  the  terms  of  the  deed,  and  the  circum- 
stances connected  with  its  execution,  that  the  grantor  meant  children, 
although  he  used  the  word  "heirs,"  effect  will  be  given  to  it  accord- 
ingly, and  the  deed  will  not  be  defeated  by  the  general  rule  that  a  con- 
veyance to  the  heirs  of  a  living  person  is  void:  Heath  v.  Hewitt,  127 
N.  Y.  166;  24  Am.  St.  Rep.  438.  See,  also,  Vickars  v.  Leigh,  104  N.  C. 
248;  Griswoldv.  Hicks,  132  111.  494;  22  Am.  St.  Rep.  549;  Broliar  v. 
Marquis,  80  Iowa,  49.  The  term  "heirs  at  law"  may  be  construed  as 
children  or  grandchildren,  where  such  a  construction  will  effectuate  the 
grantor's  intention,  and  is  consistent  with  legal  principles:  Waddell  v. 
Waddell,  99  Mo.  338;  17  Am.  St.  Rep.  575. 

1  Glass  V.  Glass,  71  Ind.  392. 

»  Gibson  v.  Tyson,  5  Watts,  34. 

»  Pickler  v.  Stapler,  5  Serg.  &  R.  109. 

*  Philadelphia  v.  Philadelphia  etc.  R.  R.  Co..  58  Pa.  St.  253. 

^  Crosby  v.  Parker,  4  Mass.  110. 


1187  PRINCIPLES    OP    CONSTRUCTION.  §   861 

of  line  was  not  intended."^  If,  however,  the  place  of  the 
monument  b}^  which  the  distance  was  controlled  and  de- 
termined cannot  be  ascertained,  the  right  of  the  grantee 
is  confined  to  the  number  of  rods  or  feet  given.  But  the 
original  location,  in  such  a  case,  may  be  shown  by  evi- 
dence of  continued  possession.^  The  words  "to  her  and 
her  representatives,"  in  a  limitation  by  deed,  can  signify 
no  more  than  her  executors  and  achninistrators.  Having 
no  legal  effect,  these  words  should  be  regarded  as  super- 
fluous.^ Real  estate  will  not  pass  by  granting,  assigning, 
bargaining,  and  selling  to  A  "all  and  all  manner  of  goods, 
chattels,  debts,  moneys,  and  all  other  things  of  me  what- 
soever, as  well  real  as  personal,  of  what  kind,  nature,  and 
quality  soever,"  "to  have  and  to  hold  the  same  and  every 
part  and  parcel  thereof,  unto  the  said  A,  his  executors, 
administrators,  and  assigns  forever."^  An  instrument, 
although  in  form  a  deed,  is  testamentary  in  its  character 
if  the  grantor  in  it  declares  that  it  is  made  on  the  condi- 
tion that  "I  reserve  the  right  to  alter,  change,  or  entirely 
abolisn  this  deed  if  I  so  desire  during  my  life,  and  that 
I  retain  all  of  the  said  property  during  my  life,  and  have 
the  control  of  the  same,  and  that  this  deed  do  not  take 
effect  until  after  my  death." ^ 

1  Ciitts  V.  King,  5  Me.  (5  Greenl.)  482. 

*  Cutts  V.  King,  5  Me.  (5  Greenl.)  482.  See  Piirinton  v.  Sedgley,  4 
Me.  (4  Greenl.)  28G. 

^  McLaurin  v.  Fairly,  6  Jones  Eq.  375. 

*  Ingell  V.  Nooney,  2  Pick.  362;  13  Am.  Dec.  434. 

^  Cunningham  v.  Davis,  62  Miss.  366.  See  for  a  similar  case.  Leaver  v. 
Gauss,  62  Iowa,  314.  A  wife's  inchoate  right  of  dower  is  released  by  a 
clause  in  a  deed  signed  by  husband  and  wile,  stating  that;  "We  hereby 
release  and  relinquish  all  right,  claim,  and  interest  whatever,  in  and  to 
said  lot  of  ground  which  is  given  by,  or  results  from  all  laws  of  this  State, 
pertaining  to  the  exemption  of  homestead  or  dower"  :  Attwater  v.  Butler, 
9  Baxt.  (Tenn.)  299.  But  by  a  clause,  "and  in  the  event  of  sale,  we  waive 
all  equity  of  redemption  and  repurchase  and  homestead  in  said  prop- 
erty," only  the  right  of  homestead,  and  not  dower,  ia  conveyed:  Mc- 
Kinley  v.  Kuntz,  9  Baxt.  (Tenn.)  299.  A  deed  conveying  a  building,  and 
"all  fixtures  of  every  description  attached  to  said  bull. ling,"  wdl  not  be 
construed  as  conveying  fixtures  not  attached  to  the  building  :  Stettaiierw. 
Himlin,  97  III.  312.  In  a  deed  conveying  several  tracts  of  land,  the 
grantor  reserved  "all  the  pine  timber  on  said  tracts,   together  with  the 


§  865  PRINCIPLES    OF    CONSTRUCTION.  1188 

PART  II. 
COMMUNITY    PROPERTY. 

§   865.      Community  property — In  wliat  States  exists. — 

It  may  be  proper  in  this  place  to  note  some  of  the  rules 
governing  community  property.  At  common  law  the 
husband  and  wife  did  not  by  virtue  of  that  relation  hold 

right  and  privilege  to  cut,  remove,  take,  and  carry  away  the  same,  or 
any  part  thereof,  at  any  and  all  times;  also  the  right  of  ingress  and 
egress  at  any  and  all  times  for  the  space  of  twelve  years  from  the  date 
above  written,  for  the  purpose  so  as  aforesaid."  The  court  held  that  the 
parties  having  determined  their  own  time  for  the  removal  of  the  timber, 
the  right  of  entry,  as  well  as  the  right  of  entry  therein,  fell  when  that 
time  expired:  Saltonstall  /;.  Little,  90  Pa.  St.  422;  35  A.m.  Rep.  683.  For 
other  cases  in  which  particular  words  and  clauses  have  been  construed, 
see  Bellamy  v.  Bellamy,  Adm.  6  Fla.  62;  Mundy  v.  Vawter,  3  Gratt.  518; 
Hall  V.  Thayer,  5  Gray,  523;  Barton  v.  Morris,  15  Ohio,  40S;  Peaks  v. 
Blethen,  77  Me.  510;  Sowle  v.  Sowle,  10  Pick.  376;  Dennison  v.  Ely,  1 
Barb.  610;  Brantly  i;,  Kee,  5  Jones  Eq.  332;  Harris  v.  Elliott,  10  Peters, 
25;  Hutchins  v.  Carleton,  19  N.  H.  487;  Braman  v.  Dowse,  12  Gush.  227; 
Melsheimer  v.  Gross,  58  Pa.  St.  412;  Smith  v.  Read,  51  Conn.  10;  Perry 
V.  Calhoun,  8  Humph.  551;  Hawk  v.  McCuUough,  21  111.  220;  Mulford 
v.IjQ  Franc,  26  Gal.  88;  McLeroy  v.  Duckworth,  13  La.  Ann.  410; 
Brackett  v.  Bidlon,  54  Mo.  428;  Blossom  v.  Van  Court,  34  Mo.  390;  86 
Am.  Dec.  114;  King  v.  Gilson,  32  111.  348;  83  Am.  Dec.  269;  Schenley  v. 
Pittsburgh,  104  Pa.  St.  472;  Claunch  v.  Allen,  12  Ala.  159;  MuUer  v. 
Boggs,  25  Cal.  175;  Roebuck  v.  Duprey,  2  Ala.  535;  Brenham  v.  David- 
son, 51  Oal.  352;  Powell  v.  Lyles,  1  Murph.  348;  Rickets  v.  Dickens,  1 
Murph.  343;  4  Am.  Dec.  555;  Williams  v.  Allen,  17  Ga.  81;  Cromwell  v. 
Winchester,  2  Head,  389 ;  Adams  v.  Marshall,  138  Mass.  228 ;  52  Am. 
Rep.  271;  Hartman  v.  Read,  50  Cal.  485;  Latham  v.  Morgan,  1  Smedes 
&  M.  611 ;  Carter  v.  Soulard,  1  Mo.  576 ;  Gratz  v.  Ewalt,  2  Binn.  95 ;  White- 
hill  V.  Gotwalt,  3  Pa.  113;  Prettyman  v.  Wilkey,  19  111.  235;  Seitzinger 
«.  Weaver,  1  Rawle,  377;  Freeman  v.  Pennock,  3  Pa.  313;  Calmes  v. 
Buck,  4  Bibb,  453;  Fratt  v.  Toomes,  48  Oal.  28;  Hartwell  v.  Camman,  10 
N.J.  Eq.  (2  Stockt.Ch.)  128;  64  Am.  Dec.  448;  Jarvis  v.  Quigley,10  Mon. 
B.  104;  Leitensdorfer  v.  Delphy,  15  Mo.  160;  55  Am.  Dec.  137;  Young  v. 
Marshall,  Hill  &  D.  Sup.  93;  Roberts  v.  Forsyth,  3  Dev.  26;  Kirkendall 
w.  Mitchell,  3  McLean,  144;  American  Academy  of  Music  v.  Smith,  54 
Pa.  St.  130;  Newmarket  v.  Smart,  45  N.  H.  87 ;  Congregational  Society  v. 
Stark,  34  Vt.  243;  Bradley  v.  Rice,  13  Me.  198;  29  Am.  Dec.  501;  Gam. 
bril  V.  Doe,  8  Blackf.  140;  44  Am.  Dec.  760:  Slosson  v.  Lynch,  43  Barb- 
147;  Swiney  v.  Swiney,  14  Lea  (Tenn.),  316;  Close  v.  Burlington,  Cedar 
Rapids  etc.  Ry.  Co.,  64  Iowa,  149;  Wallace  v.  Miller,  52  Cal.  665;  Mont- 
gomery V.  Sturdivant,  41  Cal.  290 ;  Talbert  v.  Hopper,  42  Cal.  397 ;  Vance 
V.  Pena,  33  Cal.  631;  Stafford  v.  Lick,  10  Cal.  12;  Chapman  v.  Excelsior 
Canal  Co.,  17  Cal.  231 ;  Stanway  v.  Rubio,  31  Cal.  41 ;  Peaks  v.  Blethen, 
77  Me.  510;  Adams  v.  Marshall,  138  Mass.  228;  52  Am.  Rep.  271;  Kemp 


1189  PKINCIPLES    OF    CONSTRUCTION.  §  865 

property  in  joint  ownersliip.  We  shall  not  stop  here  to 
consider  the  property  rights  of  husband  and  wife  as  they 
existed  at  common  law,  but  pass  to  the  consideration  of 
what,  in  some  of  the  States  of  the  Union,  is  made,  by 
statutory  provisions,  community  property.  The  statutes 
of  California  may  be  selected  as  an  example.  In  that 
State,  the  Code  provides  :  "All  property  of  the  wife, 
owned  by  her  before  marriage,  and  that  acquired  after- 
ward by  gift,  bequest,  devise,  or  descent,  with  the  rents, 
issues,  and  profits  thereof,  is  her  separate  property.  The 
■wife  may,  without  the  consent  of  her  husband  convey  her 
separate  property."^  ''All  property  owned  by  the  hus- 
band before  marriage,  and  that  acquired  afterward  b3'^ 
gift,  bequest,  devise,  or  descent,  with  the  rents,  issues, 
and  profits  thereof,  is  his  separate  property."^  "All 
other  property  acquired  after  marriage,  by  either  husband 
or  wife,  or  both,  is  communit}--  property.'"  In  other 
States,  where  earnings  subsequent  to  marriage  are  made 
community  property,  similar  statutes  exist.  In  Texas,  it 
is  provided:  "All  the  effects  which  both  husband  and 
wife  reciprocally  possess  at  the  time  of  the  marriage  may 
be  dissolved,  and  shall  be  regarded  as  common  effects  or 
gains,  unless  the  contrary  be  satisfactorily  proved."  * 
"All  property,  both  real  and  personal,  of  the  husband, 
owned  or  claimed  by  him  before  marriage,  and  that  ac- 
quired afterward  by  gift,  devise,  or  descent,  as  also  the 
increase    of  lands,  or  slaves  thus   acquired,  shall  be  his 

V.  Bradford,  61  Md.  330;  Pugh  v.  Mays,  60  Tex.  191;  Warner  v.  San- 
dusky, Mansfield  etc.  R.  R.  Co.,  39  Ohio  St.  70;  Hummelman  v.  Mounts, 
87  Ind.  178 ;  Weir  v.  Simmons,  55  Wis.  637 ;  Maker  v.  Maker,  74  Me.  104. 
See,  also,  Arnold  v.  Hymer,  2  McCrary,  C.  C.  631 ;  Cannon  v.  Barry,  59 
Miss.  289;  Steuart  v.  Gage,  59  Miss.  558;  Bailey  v.  Willis,  56  Tex.  212; 
Little  V.  Allen,  56  Tex.  133;  Lunt  v.  Lunt,  71  Me.  377;  Powers  r.  Patten, 
71  Me.  583 ;  Bronson  v.  Lane,  91  Pa.  St.  153 ;  Tifft  v.  Buffalo,  82  N.  Y.  204 ; 
Blair  v.  Osborne,  84  N.  C.  417;  Jeffrey  v.  Ilurrfh,  42  Mich.  563;  Look 
V.  Kenney,  128  Mass.  284;  Eysaman  v.  Eysaman,  24  Jlun,  430;  Hinkle 
V.  Hinkle,  69  Ind.  134 ;  Atkinson  v.  Dixon,  70  Mo.  381 ;  Gilkey  v.  Shepard. 
51  Vt.  546 ;  Bouknight  v.  Epting,  11  S.  C.  71;  Rankin  v.  Warner,  2  Lea 
(Tenn.),  301;  Newman  v.  Ashe,  9  Baxt.  (Tenn.)  380. 

'  Civil  Code  Cal.  §  162.  »  Civil  Code  Cal.  §  164. 

'  Civil  Code  Cal.  §  163.  *  Paschal 's  Tex.  Dig.  art.  4638. 


§  866  PRINCIPLES    OF    CONSTRUCTION.  1190 

separate  property.  All  property,  both  real  and  personal, 
of  the  wife  owned  or  claimed  by  her  before  marriage  and 
that  acquired  by  gift,  devise,  or  descent,  as  also  the  in- 
crease of  all  lands  thus  acquired,  shall  be  the  sepa- 
rate property  of  the  wife."  ^  "All  property  acquired 
by  either  husband  or  wife  during  the  marriage,  except 
that  which  is  acquired  in  the  manner  specified  in  the 
preceding  section,  is  common  property."^  Statutes  to 
the  same  effect  exist  in  the  States  of  Louisiana  and  Ne- 
vada, and  in  Idaho,  Arizona,  and  Washington  Terri- 
tories.® 

§  866.  The  civil  law. — The  rule  as  to  the  property 
rights  of  husband  and  wife  in  the  civil  law,  is  thus 
stated  by  Mr.  Burge:  "There  is  a  marked  distinction 
between  the  civil  law  and  other  systems  of  jurispru- 
dence in  the  civil  rights  and  capacities  of  the  husband 
and  wife.  It  does  not  recognize  in  the  husband  and 
wife  that  union  of  persons,  by  which  the  rights  of  the  wife 
were  incorporated  and  consolidated  during  the  coverture 
with  those  of  the  husband.     It  does  not,  therefore,  sub- 

^  Paschal's  Tex.  Dig.  art.  4641. 

*  Paschal's  Tex.  Dig.  art.  4642. 

'  Louisiana  Civil  Code,  §  2371 ;  Comp.  Laws  of  Nevada,  p.  56, 
§9  151,  152;  Comp.  Laws  of  Arizona,  ed.  1877,  p.  328,  §§  1967- 
1969;  Laws  of  Idaho,  Session  1866-67,  p.  65,  §U,2j  Code  of  Wash- 
ington Ty.,  ed.  1881,  §§  2400-2411.  See  generally  on  the  question 
of  community  property.  Rich  v.  Tubbs,  41  Cal.  34 ;  Le  Blanc  v.  Le 
Blanc,  20  La.  Ann.  207 ;  Dunham  v.  Chatham,  21  Tex.  247;  73  Am.  Dec. 
228;  Brown  v.  Cobbs,  10  La.  181;  Rice  v.  Rice,  21  Tex.  66;  Hughey  v. 
Barrow,  4  La.  Ann.  249 ;  Comeau  v.  Fontenot,  19  La.  407  ;  Menchaca  v. 
Field,  62 Tex.  135;  Cannons.  Murphy,  31  Tex.  407;  Pancoast  v.  Pancoast, 
57  Tex.  1320;  Porter  v.  Chronister,  58  Tex.  53;  Simeon  v.  Perrodin,  35 
La.  Ann.  931;  Lake  v.  Lake,  52  Cal.  428;  Sexton  v.  McGill,2  La.  Ann. 
190;  Morris  v.  Covington,  2  La.  Ann.  259;  Lawson  r.  Ripley,  17  La.  251; 
Denegre  ^;.Denegre,  30  La.  Ann.  pt.  1,  275;  Lewis  v.  Lewis,  18  Cal.  659; 
Howard  v.  York,  20  Tex.  670;  George  w.  Ransom,  15  Cal.  323;  76  Am. 
Dec.  490;  De  Blaneij.  Hynch,  23  Tex.  28;  Cartwright  v.  Cartwright,  18 
Tex.  296;  Spear  v.  Ward,  20  Tex.  674;  Forbes  v.  Dunham,  24  Tex.  611; 
Bateman  v.  Bateman,  25  Tex.  270;  BonneriJ.  Gill,  5  La.  Ann.  630;  Du- 
crest  V.  Bijeau,  8  Martin,  N.  S.,  198;  Love  v.  Robertson,  6  Tex.  6;  56  Am. 
Dec.  41 :  Pearce  v.  Jackson,  61  Tex.  642 ;  Johnson  v.  Burford,  39  Tex.  242; 
Claiborne  v.  Tanner,  18  Tex.  72;  McAllister  v.  Farley,  39  Tex.  552. 


1191  PRINCIPLES    OF    CONSTRUCTION.  §  8GG 

ject  her  to  those   civil  disabilities  which  must  have  re- 
sulted   from    that    union.      The    husband    and    wife    are 
regarded  as   distinct  persons,  with  separate  rights,  and 
capable    of  holding  distinct  and   separate  estates.     The 
wife  was  alone  responsible   for  and  might  be  sued,  and 
was  competent  to  sue,  on  her  own  contracts  and  engage- 
ments, and  the  husband    could    not  subject  her  or  her 
property  to  any  liability  for  his   debts  or  engagements. 
The  communio  bonormn,  which  is  to  be  found  in  so  many 
systems   of  jurisprudence,  might  have  been  part  of  the 
Roman  law  at  an  earlier  period  of  its  histor}^  but  it  had 
long  before  the  compilation  of  the  digest  fallen  into  dis- 
use.    The    parties    might,  by    their    nuptial    agreement, 
adopt  it,  but  it  had  tlien  ceased  to  be  a  provision  of  the 
law.     The  peculiarities  of  the  civil  law  in  these  respects, 
may  be  referred  to  the  disuse  into  which  the  formal  rites 
of  marriage,  per  confarreationem  et  coemptionem,  had  fallen. 
Marriages  celebrated  according  to  those  rites,  gave  to  the 
husband  and  wife  a  community  of  interest  in  the  prop- 
erty of  each  other.     By  the  marriage  per  coemptionem,  the 
husband  was  considered  to  have  purchased  his  wife.     She 
ceased  to  be  under  her  parental  power,  and  became  sub- 
ject  to    the    power   of   her    husband.     All    her   property 
belonged   to  him,  and   she   succeeded  to   it  on  his  death. 
Long  before  the  reign  of  Justinian,  marriages  per  usum, 
that  is  by  cohabitation  as  man  and  wife,  had  superseded 
the  more  formal  marriages.     The  marriage  per  usum  did 
not  alter  the  status  of  the  female,  nor  subject  her  to  the 
marital  power,  but  she  still  remained  under  that  of  her 
father."  ^     The  dos  was  the  property  brought  by  the  wife 
at  the  marriage,  contributed  either  by  herself,  or  by  some 
other  person  for  her  beneht.     The  husband  contributed 
his  donatio  propter   nuptias,  or    antidos,  but  in  all  oilier 
property  they    each    retained   the    same    rights    as   they 
would    have    if  unmarried.^     "The    husband    acquires  a 
dominium  in  the  dotal  property,  which  is  determinable 

1  1  Burge,  Colonial  and  Foreign  Laws,  263,  264. 
»  1  Burge,  Colonial  and  Foreign  Laws,  264. 


§  SG?  PRINCIPLES    OP    CONSTPwUCTION.  1192 

on  the  dissolution  of  the  marriage,  unless  he  has  be- 
come the  purchaser  of  it  at  an  estimated  value.  In 
that  case,  although  it  is  not  determinable,  it  is  compe- 
tent for  the  wife,  if  he  be  insolvent,  to  recover  so  much 
of  the  dotal  property  as  still  remains  in  his  possession. 
The  husband,  in  respect  of  his  dominium,  may  recover  in 
his  own  name  any  part  of  it  which  is  withheld.  He  may 
even  institute  an  action  against  his  wife,  if  she  has  with- 
drawn any  part  of  it.  He  has  the  administration  and 
management  of  the  dotal  property,  and  receives  for  liis 
own  use  its  annual  fruits,  rents,  and  profits,  in  considera- 
tion of  wliich  he  sustains  the  expenses  incident  to  the 
marriage.  If  a  debt  owing  by  him  to  his  wife  be  the  sub- 
ject of  dos,  he  is  not  chargeable  with  interest  on  it  during 
the  coverture.  He  has  the  power  of  alienating  such  part 
of  the  dotal  property  as  is  personal,  but  he  cannot,  even 
with  her  consent,  alienate  or  subject  to  any  charge  or 
encumbrance  any  part  of  it  which  is  immovable  or  real, 
unless  he  had  become  the  purchaser  of  it  at  an  estimated 
price.  An  alienation  or  a  charge  on  the  dotal  immovable 
property  is,  ipso  jure,  void.  But  it  may  be  sustained,  if 
the  wife  has  for  two  years  after  the  alienation  consented 
to  it,  or  the  price  for  which  it  has  been  sold  has  been  in- 
vested in  the  purchase  of  real  property,  or  equally  advan- 
tageous."^ 

§  867.  In  other  countries. — According  to  the  Code 
Napoleon,  the  community  is  composed  actively:  "1st.  Of 
all  the  movable  property  which  the  married  parties  pos- 
sessed at  the  time  of  the  celebration  of  the  marriage, 
together  with  all  movable  property  which  falls  to  them 
during  the  marriage,  by  title  of  succession,  or  even  of 
donatiou,  if  the  donor  have  not  expressed  himself  to  the 
contrary.  2d.  Of  all  the  fruits,  revenues,  interests,  and 
arrears,  of  what  nature  soever  they  may  be,  fallen  due  or 
received  during  the  marriage,  and  arising  from  property 
which  belonged  to  the  married  persons  at  the  time  of  the 

*  Burge,  Colonial  and  Foreign  Laws,  269,  270. 


1193  PRINCIPLES    OF    CONSTRUCTION.  §  S67 

celebration,  or  from  such  as  have  fallen  to  them  durinp- 

o 

the  marriage  b}^  any  title  whatsoever.  3d.  Of  all  the 
immovables  which  are  acquired  during  the  marriage."^ 
"Every  immovable  is  reputed  to  have  been  acquired  in 
community,  unless  it  be  proved  that  one  of  the  married 
parties  had  the  property  or  legal  possession  thereof  at  a 
period  anterior  to  the  marriage,  or  that  it  has  fallen  to 
such  party  since,  by  title  of  succession  or  donation."^ 
"The  immovables  which  married  persons  possess  on  the 
day  of  the  celebration  of  the  marriage,  or  which  fall  to 
them  during  its  continuance  by  title  of  succession,  do 
not  enter  into  community.  Nevertheless,  if  one  of  the 
married  persons  have  acquired  an  immovable  subse- 
quently to  the  contract  of  marriage  containing  condition 
of  community,  but  before  the  celebration  of  the  mar- 
riage, the  immovable  acquired  in  such  interval  shall  enter 
into  community,  unless  the  acquisition  have  been  made 
in  the  execution  of  some  article  of  marriage;  in  which 
case  it  shall  be  regulated  according  to  the  agreement." ' 
"  Donations  of  immovables  which  are  made  during  mar- 
riage to  one  only  of  the  married  parties,  do  not  fall  into 
community,  but  belong  to  the  donee  only,  unless  the  dona- 
tion expressly  declare  that  the  thing  given  shall  belong  to 
both  in  community."*  "An  immovable,  abandoned  or 
ceded  by  the  father,  mother,  or  other  ancestor  to  one  of 
the  two  married  parties,  either  to  satisfy  what  shall  be 
owing  to  such  party,  or  on  condition  of  paying  debts  due 
from  the  donor  to  strangers,  does  not  enter  into  commu- 
nity, saving  compensation,  or  indemnity."''  "An  iminov- 
able  acquired  during  marriage,  by  title  of  exchange  for 
an  immovable  belonging  to  one  of  the  two  marrieti  par- 
ties, does  not  enter  into  community,  but  is  substituted 
instead  and  in  place  of  that  which  was  alienated,  saving 

^  Coile  Napoleon,  Richards'  Traaslation,  ^  1401. 

*  Code  Napoleon,  <J  1402. 
^  Code  Napoleon,  §  1404. 

*  Code  Napoleon,  §  1405. 

*  Code  Napoleon,  §  1406. 


§  867  PRINCIPLES    OF    CONSTRUCTION.  1194 

recompense  if  there  be  any  difference  of  value."'  The 
civil  law  with  modifications  also  prevails  in  Holland  and 
in  Spain.^ 

»  Code  Napoleon,  §  1407.  See  Code  of  Lower  Canada,  §§  1268,  1269, 
1270,  1384.  The  community  is  composed  passively:  1st.  Of  all  personal 
debts  which  the  married  parties  were  encumbered  on  the  day  of  the 
celebration  of  their  marriage,  or  with  which  those  successions  were 
charged,  which  fell  to  them  during  the  marriage,  saving  compensation 
for  those  relating  to  immovables  proper  to  one  or  the  other  of  the  mar- 
ried parties.  2d.  Of  debts,  as  well  in  capital  sums  as  in  arrears  of  in- 
terest, contracted  by  the  husband  during  the  community,  or  by  the 
wife  with  her  husband's  consent,  saving  compensation  in  cases  where 
there  is  ground  for  it.  3d.  Of  those  arrears  and  interest  only  of  rents 
or  debts  due  to  others  which  are  personal  to  the  two  married  parties. 
4th.  Of  usufructuary  repairs  of  immovables  which  do  not  enter  into 
community.  5th.  Of  alimony  of  married  persons,  of  the  education  and 
maintenance  of  children,  and  of  every  other  charge  of  marriage." 

''■  Mr.  Burge  says  concerning  the  law  of  Holland:  "The  provisions  of 
the  civil  law,  wliich  establish  the  dos  and  antidos,  and  allow  the  hus- 
band and  wife  to  retain  the  separate  and  absolute  ownership  of  the  rest 
of  their  property,  might  be  adopted  by  parties  in  their  nuptial  contracts, 
but  they  formed  no  part  of  the  law  of  Holland.  The  property  of  the 
husband  and  wife,  and  their  rights  and  interests,  stante  matrimonio,  are 
subject  either  to  the  disposition  which  they  have  themselves  made  by 

contract  on  their  marriage,  or  to  that  which  the  law  makes By 

the  law  of  Holland,  the  communio  bonorum  took  place  as  the  immediate 
consequence  of  marriage,  and  commenced  from  the  moment  of  its  cele- 
bration, either  in  facie  ecclesiae,  or  before  the  magistrate.  But  according 
to  some  codes,  tlie  title  to  it  was  not  complete,  unless  there  had  been  an 
ingvssusthori,  whilst  others  required  that  there  should  have  been  annua 
cohabitatio  et  convictus.  The  communio  bonorum  prevails,  unless  the  hus- 
band and  wife  have,  by  an  antenuptial  contract,  excluded  it.  They  may 
exclude  it  wholly  or  in  part.  Thus,  the  communio  questuum  may  be  re- 
tained, and  the  other  excluded.  The  exclusion  may  be  made  in  express 
terms,  or  implied  from  the  dispositions  which  are  contained  in  the  ante- 
nuptial contract" :  Colonial  and  Foreign  Laws,  vol.  1,  pp.  276,  278. 
Concerning  the  law  of  Spain,  Mr.  Burge  says:  "  The  law  of  Spain  does 
not  recognize  the  general  communio  bonorum,  which  prevailed  in  Hol- 
land, but  admits  only  the  communio  questuum.  The  latter  is  constituted 
between  the  husband  and  wife  as  the  legal  and  necessary  effect  of  their 
marriage.     The  property  of  which  it  consists  is  termed  ganancial,  bienes 

gananciales The  community  silently  and  imperceptibly  acquired 

a  place  among  the  usages  of  Spain.  It  was  first  recognized  in  El  Fuero 
Juzgo.  The  property  of  which  it  is  formed  belongs  in  common  to  the 
two  consorts,  and  on  the  dissolution  of  the  marriage,  is  divisible  be- 
tween them  in  equal  shares.  It  is  confined  to  their  future  acquisitions, 
durante  el  matrimonio.  The  property  belonging  to  either  at  the  time  of 
the  marriage,  by  whatever  title  it  was  acquired,  patrimonium  et  capUale^ 


1195  .  PRINCIPLES    OF    COXSTPvUCTION.  §  868 

§   868.      Presumption     of     community     property.  —  It 

may  be  observed,  in  considering  the  effect  given  to  these 
statutes,  that  all  property  acquired  by  either  party  after 
marriage  is  presumed  to  be  community  property.  "  Prop- 
erty acquired  by  purchase  during  coverture,  by  either 
party,  is  presumed  to  be  community  property,  whether 
the  consideration  was  services  rendered  or  money  paid 
by  either  party."  ^  So,  therefore,  a  party  who  asserts 
that  property  acquired  during  the  life  of  the  wife,  or  with 
funds  ill  his  hands  at  the  time  of  her  death,  is  his  separate 
property,  has  the  burden  of  proof.^  Mr.  Justice  Field,  in 
a  case  in  California,  speaking  of  the  law  of  California  as 
regards  community  property,  said:  "These  provisions  are 
borrowed  from  the  Spanish  law,  and  there  is  hardly  any 
analogy  between  them  and  the  doctrine  of  the  common 
law  in  respect  to  the  rights  of  property  consequent  upon 

forms  no  part  of  it.  But  its  fructus,  or  rents  and  profits,  are  included  in 
it,  and -are  therefore  ganancial.  The  acquisitions  during  the  marriage 
by  a  common  title,  whether  it  be  lucrative  or  onerous,  will  form  part  of 
the  community.  Thus,  a  donation  made  to  both  consorts  will  be  ganan- 
cial, but  a  donation  made  to  either,  although  it  be  made  to  the  wife  by 
the  husband's  relations,  or  to  the  husband  by  the  wife's  relations,  will 
be  the  separate  and  exclusive  propertj'  of  such  donee,  and  form  no  part 
of  the  community.  The  title  under  which  property  acquired  by  the 
one  consort  can  become  ganancial  must  be  that  which  is  onerous.  An 
estate,  therefore,  which  was  purchased  by  either  consort  will  be  ganan- 
cial. All  property  is  prima  facie  presumed  to  be  ganancial  which  is  not 
proved  to  be  proprium  or  patrimonium" :  Colonial  and  Foreign  Laws, 
vol.  1,  pp.  418,  419. 

1  Chapman  v.  Allen,  15  Tex.  278,  283.  See,  also,  Biggi  v.  Biggi,  98 
Cal.  33;  Althof  w.  Conheim,  38  Cal.  230;  99  Am.  Dec.  3G3;  Morgan  v. 
Lones,  78  Cal.  58;  Burton  v.  Lies,  21  Cal.  87;  Smith  v.  Smith,  12  Cal. 
216;  73  Am.  Dec.  533;  Tolman  v.  Smith,  85  Cal.  280;  Ingersoll  v.  True- 
body,  40  Cal.  603;  Ramsdell  >:  Fuller,  28  Cal.  37;  .87  Am.  Dec.  103;  Mc- 
Donald V.  Badger,  23  Cal.  393;  83  Am.  Dec.  123;  Pixley  v.  Huggins,  15 
Cal.  127;  Schuyler  v.  Broughton,  70  Cal.  282;  Landers  v.  Bolton,  26  Cal. 
393;  Moore  v.  Jones,  63  Cal.  12;  Adams  v.  Knowlton,  22  Cal.  2.S3;  Jor- 
dan v.  Fay,  98  Cal.  264;  Dimmick  v.  Dimmick,  95  Cal.  323;  Peck  j;. 
Brummagim,  31  Cal.  440;  89  Am.  Dec.  195;  Meyer  v.  Kinzer,  12  Cal. 
247 ;  73  Am.  Dec.  538. 

*  Osborn  v.  Osborn,  62  Tex.  495.  See,  also,  Dimmick  v.  Dimmick, 
95  Cal.  323;  Peck  v.  Brummagim,  31  Cal.  440;  89  Am.  Dec.  195;  Meyer 
V.  Kinzer,  12  Cal.  247;  73  Am.  Dec.  538;  Estate  of  i'.auer,  79  Cal.  304; 
Tolman  v.  Smith,  85  Cal.  280;  McComb  v.  Spangler,  71  Cal.  418. 


§  8G8  PRINCIPLES    OF    CONSTRUCTION.  1196 

marriage.  The  statute  proceeds  upon  the  theory  that  the 
marriage,  in  respect  to  property  acquired  during  its  exist- 
ence, is  a  community  of  which  each  spouse  is  a  member, 
equally  contributing  by  his  or  her  industry  to  its  pros- 
perity, and  possessing  an  equal  right  to  succeed  to  the 
property  after  dissolution,  in  case  of  surviving  the  other. 
To  the  community  all  acquisitions  by  either,  whether 
made  jointly  or  separately,  belong.  No  form  of  transfer 
or  mere  intent  of  parties  can  overcome  this  positive  rule 
of  law.  All  property  is  common  property,  except  that 
owned  previous  to  marriage,  or  subsequently  acquired  in 
a  particular  way.  The  presumption,  therefore,  attending 
the  possession  of  property  by  either,  is  that  it  belongs  to 
the  community;  exceptions  to  the  rule  must  be  proved. 
....  This  invariable  presumption  which  attends  the 
possession  of  propert}'  by  either  spouse  during  the  exist- 
ence of  the  community,  can  only  be  overcome  by  clear 
and  certain  proof  that  it  was  owned  by  the  claimant  be- 
fore marriage,  or  acquired  afterward  in  one  of  the  par- 
ticular ways  specified  in  the  statute,  or  that  it  is  property 
taken  in  exchange  for,  or  in  the  investment,  or  as  the 
price  of  property  so  originally  owned  or  acquired.  The 
burden  of  proof  must  rest  with  the  claimant  of  the  sep- 
arate estate.  Any  other  rule  would  lead  to  infinite  embar- 
rassment, confusion,  and  fraud.  In  vain  would  creditors 
or  purchasers  attempt  to  show  that  the  particular  property 
seized,  or  bought,  was  not  owned  by  the  claimant  before 
marriage,  and  was  not  acquired  by  gift,  bequest,  devise,  or 
descent,  or  was  not  such  property  under  a  new  form  con- 
sequent upon  some  exchange,  sale,  or  investment.  In. 
vain  would  they  essay  to  trace  through  its  various  changes, 
the  disposition  of  any  separate  estate  of  the  wife,  so  as  to 
exclude  any  blending  of  it  with  the  particular  property 
which  might  be  the  subject  of  consideration."^  Where  a 
husband  after  marriage  purchases  land  with  his  separate 
funds,  he  may  take  the  conveyance  in  the  name  of  his 
minor  children  by  a  former  wife,  and  such  action  cannot 

1  In  Meyer  v.  Kinzer,  12  Cal.  247,  251 ;  73  Am.  Dec.  538. 


1197  PRINCIPLES    OF    CONSTRUCTION.  §  SCO 

be  considered  to  be  a  fraud  upon  the  riglits  of  the  wife.' 
But  if,  during  the  existence  of  the  marriage  relation,  the 
husband  erects  a  building  on  such  land,  the  presumption 
that  the  community  property  was  invested  in  this  form 
cannot  be  repelled  by  loose  and  unsatisfactory  evidence.^ 

§  869.      Grants  from  the  g-overnment — Rule  in  Texas. 

Property  acquired  by  one  party  from  the  government, 
under  a  grant  or  a  donation,  is  considered,  in  Texas,  to  be 
community  property.^     In  a  late  case  in  that  State,  Mr. 

1  Smith  V.  Smith,  12  Cal.  216;  73  Am.  Dec.  533. 

*  Smith  V.  Ward,  12  Cal.  216.  See,  also,  Schuler  v.  Savings  and  Loan 
Society,  64  Cal.  398;  Altliof  v.  Conheim,  38  Cal.  230;  Barbour  v.  Fair- 
child,  6  L.  C.  Rep.  113;  City  Insurance  Co.  v.  Steamboat  Lizzie  Sim- 
mons, 19  La.  Ann.  249;  Schmeltz  v.  Garey,  49  Tex.  49;  Planchett's 
Succession,  29  La.  Ann.  520 ;  Bouligny  r.  Forlier,  16  La.  Ann.  213 ;  Provost 
V.  Delahoussaye,  5  La.  Ann.  610;  Chapman  v.  Alden,  15  Tex.  278;  Sul- 
Btrang  v.  Belts,  24  La.  Ann.  235 ;  Block  v.  Melville,  22  La.  Ann.  149 ;  Tally 
V.  Heffner,  29  La.  Ann.  583 ;  Huston  v.  Curl,  8  Tex.  242 ;  58  Am.  Dec.  110 ; 
Cooke  V.  Bremond,  27  Tex.  457 ;  86  Am.  Dec.  626 ;  Zorn  v.  Tarver,  45 
Tex.  419;  Love  v.  Robertson,  7  Tex.  11;  54  Am.  Dec.  41;  Mitcliell  v. 
Marr,  26  Tex.  331;  Higgins  v.  Johnson,  20  Tex.  394;  70  Am.  Dec.  394; 
Succession  of  Wade,  21  La.  Ann.  347;  Smalley  v.  Lawrence,  9  Rob.  (La.) 
214;  Ford  v.  Ford,  1  La.  201 ;  Fisher  v.  Gordy,  2  La.  Ann.  763.  In  Ford 
V.  Ford,  1  La.  201,  the  court  said:  "The  principles  laid  down  in  the 
last  article  of  the  code  cited,  creates  a  legal  presumption  that  property 
acquired  during  marriage  l)y  purchase,  whether  the  acquisition  be  made 
in  the  joint  names  of  husband  and  wife,  or  in  the  names  of  either  sepa- 
rately, must  be  considered  as  common  property,  which  can  be  defeated 
only  by  certain  and  positive  evidence  that  it  was  acquired  by  the  sepa- 
rate funds  of  one  of  the  parties."  The  statute  in  California,  section  164 
of  the  Civil  Code,  has,  however,  been  amended  by  providing  that  when 
property  is  conveyed  to  a  married  woman  by  an  instrument  in  writing, 
the  i)resumption  is  that  the  title  is  vested  in  her  as  her  separate  prop- 
erty, and  if  to  her  and  her  husband,  the  presumption  is  that  she  takes 
as  tenant  in  common.     See  Ileiiey  v.  Pesoli,  109  Cal.  53. 

'  Yates  V.  Houston,  3  Tex.  433.  In  this  case  the  court,  in  considering 
this  question,  said :  "  It  would  seem  that  wliere  the  government  reciuires, 
by  public  order,  a  sum  of  money  so  considerable  in  amount  to  be  paid 
before  the  issue  of  the  title,  and  as  an  indispensable  condition  to  its  de- 
livery, that  the  grant  could  not  be  regarded  as  a  pure  donation.  Kor 
can  it  be  regarded  as  bought  with  the  separate  funds  of  the  husband. 
There  is  no  provision  of  law  which  requires  or  authorizes  the  separate 
property  of  the  head  of  the  family  to  be  expended  for  this  jmrpose;  and 
where  there  is  no  showing  to  the  contrary,  the  presumption  always  is, 
that  the  advances  proceed  from  the  funds  of  the  community,  and  pur- 


§   8G9  PRINCIPLES    OF    CONSTRUCTION.  1198 

Justice  Bonner  said:  "The  policy  of  Texas  has  ever  been 
to  induce  by  grants  of  land  both  married  and  single  men 
to  immigrate  and  become  citizens.  In  consonance  with 
the  objects  sought,  greater  inducements  have  been  held 

chases  are  made  for  its  benefit  and  augmentation.  The  fact  that  the 
grant  was  made  to  the  head  of  the  family  is  an  immaterial  circumstance, 
provided  it  was  founded  on  considerations  which  impress  upon  it  the 
character  of  a  purchase,  or  of  property  acquired  by  onerous  title.  The 
head-right  grants  under  the  State  colonization  laws,  in  which  some  consid- 
eration was  paid  for  the  land  itself,  were  made  to  the  heads  of  families. 
And  if,  by  law,  lands  were  expressly  directed  to  be  ^old  to  families,  to  a 
greater  or  less  amount,  according  to  the  merits  and  circumstances  of  the 
applicants,  and  the  grants  were  made  in  the  name  of  the  head  of  the 
families,  it  could  not  be  contended  that  such  lands  were  the  separate 
property  of  the  husband.  Is  there  any  substantial  difference  between 
such  sales  and  this  grant,  where  the  title  was,  by  public  authority,  di- 
rected not  to  issue  until  after  the  fees  were  paid  ?  But,  on  the  second 
ground,  we  are  of  opinion  that  the  grant  was  in  consideration  of  ser- 
vices to  be  rendered,  and  should,  therefore,  be  regarded  as  a  ])ortion  of 
the  ganancial  property  of  the  marriage.  The  object  of  the  government 
in  the  law  of  colonization,  was  to  settle  tlae  vast  wilderness  of  a  remote 
frontier  with  a  reputable,  hardy,  and  industrious  population.  'Agri- 
culture, industry,  and  the  arts,'  were  to  be  promoted,  and  to  accomplish 
this,  grants  of  a  large  amount  of  land  were  offered  to  emigrant  families, 
but  not  gratuitouslj^ ;  not  simply  on  the  ground  that  they  would  intro- 
duce themselves  into  the  country;  but  that  they  should  cultivate  the 
lands,  and  that  within  two  years  from  the  date  of  the  concession.  The 
inquiry  then  arises,  by  wliom  is  this  to  be  accomplished  ?  Are  we  to 
suppose  that  the  husband  is  the  sole  cultivator?  That  fields  are  to  be 
opened,  and  lands  stocked  with  cattle,  without  the  assistance  of  his 
partner,  and  the  expenditure  of  their  joint  funds  ?  And,  in  fact,  it 
seems  immaterial  whether  the  whole  of  the  labor  and  money  be  be- 
stowed and  expended  by  the  husband  or  not,  provided  such  was  the 
necessary  condition  and  charge  by  wliich  title  could  alone  be  originally 
acquired,  or  subsequently  preserved.  By  the  principles  of  the  law  then 
existing,  the  results  of  the  labor  of  the  partners,  and  of  each  one  of  them, 
became  common  property.  It  is  of  no  consequence  whether  one  con- 
tribute more  than  the  other  to  the  acquisition,  or  whether  it  be  procured 
by  the  labor  and  traffic  of  one  alone,  it  is  common  to  both  by  virtue 
of  the  subsisting  partnership,  tlirough  which  their  acquisitions  are  re- 
ciprocally communicated.  The  position  is  fallacious  which  assumes  that 
the  land  is  already  granted,  and  that  the  labors  of  the  wife  are  repaid 
by  her  community  interest  in  the  value  of  the  improvements  matle,  or 
cattle  pastured  on  the  land.  If  the  land  can  be  retained  only  by  services 
to  be  rendered,  or  labors  performed,  by  both  of  the  partners,  or  by  one, 
and  the  profits  by  law  accrue  to  both,  it  would  be  inequitable  that  the 
labors  of  the  one  should  be  rewarded  by  the  land  and  half  of  the  im- 
provements, and  that  of  the  other  by  only  half  of  the  latter.     To  this  she 


1199  PRINCIPLES    OF    CONSTRUCTION.  §  869 

out  to  the  former  class,  as  shown  by  the  increased  amount 
of  land  given.  Although  the  certificate  of  title,  under 
the  law,  issued  to  the  husband  as  the  head  of  the  family, 
yet,  in  consideration  of  the  joint  toils,  privations,  and 
dangers  undergone  by  the  wife  also,  it  has  been  repeat- 
edly decided  by  this  court  that,  under  our  system,  it 
would  constitute  community  property  of  the  husband  and 
wife,  one-half  of  which,  charged  with  the  debts  of  the 
community,  would,  on  the  death  of  the  wife,  descend  to 
her  children."  ^  But  it  has  been  held  in  that  State  that, 
where  the  land  was  selected  by  the  husband  prior  to  the 
death  of  the  wife,  but  the  title  was  not  extended  to  him 
until  after  her  death,  the  land  did  not  become  commu- 
nity property.^  In  Texas,  the  true  test  to  be  derived  from  . 
the  authorities  is  said  to  be:  "1st.  Did  the  surviving  hus- 
band receive  the  grant  by  reason  of  such  immigration, 

would  be  entitled  on  property  brought  by  the  husband  into  the  marriage 
as  his  separate  estate,  and  of  which  the  title  was  fully  vested  in  him, 
and  to  procure  or  preserve  which  no  expenditure  of  labor  or  money  is 
necessary;  but  where  these  expenditures  and  services  can  alone  procure 
and  secure  the  title,  she  should  certainly  be  entitled  to  an  equal  share  of 
the  reward  bestowed.  These  grants  were,  in  fact,  dearly  purchased  by 
the  unparalleled  toils  and  sufferings  of  both  the  partners;  and  the  fruits 
of  their  labt  rs  under  a  system  of  laws  where  the  community  interests 
are  protected  witli  such  zealous  vigilance  should  be  equally  distributed. 
It  cannot  be  said,  that  if  the  land  be  not  appropriated  exclusively  to  the 
husband,  each  member  of  the  family  is  as  much  entitled  to  a  distributive 
share  as  the  wife,  inasmuch  as  the  services  of  the  whole  are  rendered  to 
secure  tlie  title.  This  is  answered  by  the  consideration  that,  under  the 
laws,  thp  services  of  the  family  are  always  to  be  rendered  for  the  benefit 
of  the  community,  and  not  for  its  individual  members,  especially  those  in 
a  subordinate  relation.  The  law  was  framed  to  secure  the  migration  of 
women  as  well  as  men.  Their  presence  was  iiidispensable  to  the  domestic 
happiness  of  individuals,  and  to  the  order,  welfare,  and  continued  exist- 
ence and  prosperity  of  the  colony.  It  cannot  be  supposed  that  a  legisla- 
tor, under  the  Spanish  system,  would  intend  that,  in  a  grant  to  be  made 
to  a  family,  consisting  of  a  husband,  wife,  and  children,  and  this  on 
onerous  conditions,  that  the  rights  of  the  wife,  as  partner  in  the  con- 
jugal society,  should  be  disregarded.  The  presumptions  of  law  strongly 
favor  the  rights  of  the  community,  and  they  should  liave  their  due  force 
where  the  law  is  not  too  clear  to  exclude  their  operation." 

1  Ilodge  V.  Donald,  55  Tex.  344.  And  see  Wilkinson  v.  Wilkinson,  20 
Tex.  242. 

»  Webb  V.  Webb,  15  Tex.  274. 


§  870  PRINCIPLES    OF    CO-\STKUCTION.  1200 

settlement,  residence,  etc.,  on  his  own  part,  as  would,  un- 
der the  law,  entitle  him  to  it,  independently  of  the  right 
based  upon  his  status  as  a  married  man  at  the  date  of  the 
death  of  his  wife?  If  so,  it  was  his  separate  property. 
2d.  Was  the  increased  quantity  over  that  to  which  a 
single  man,  not  the  head  of  a  family,  was  entitled,  given 
to  the  surviving  husband  by  reason  of  the  fact  that,  at 
the  date  of  the  death  of  the  wife,  he  was  then  a  married 
man?  If  so,  it  was  the  community  property  of  the  hus- 
band and  the  deceased  wife,  her  half-interest  in  which, 
subject  to  the  debts  of  the  community,  would  descend  to 
her  children."  ^ 

§  870.  In  California  and  Louisiana. — In  California* 
the  rule  prevailing  in  Texas  on  the  point  considered  in 
the  previous  section  is  disapproved.  Referring  to  an  early 
case  in  Texas,  cited  in  the  preceding  section,^  the  su- 
preme court  of  California  said:  "The  error,  as  we  con- 
ceive, of  this  decision,  consists  in  regarding  the  fees  paid 
to  the  officers,  and  the  services  rendered  in  settling  upon 
the  land,  as  constituting  a  valuable  consideration  in  the 
nature  of  a  price  to  the  government.  The  fees  incurred 
in  making  the  survey,  and  in  issuing  the  title  papers,  were 
altogether  incidental  to  the  grant  and  formed  no  part  of 
Its  consideration,  and  the  services  rendered  in  the  settle- 
ment were  directly  for  the  benefit  of  the  grantee,  and  only 
collaterally  and  remotely  for  the  benefit  of  the  govern- 
ment. Agricultural  lands  solicited  under  the  colonization 
laws  were  supposed  to  be  for  use  and  cultivation  by  the 
petitioner,  and  the  grant  to  him  was  only  subject  to  their 
appropriation  to  that  end.  Such  limitation  could  not 
affect  the  character  of  the  grant  as  a  donation,  and  con- 
vert it  into  a  purchase.  The  government,  in  fact,  said  to 
the  petitioner,  if  you  want  the  lands  for  use  and  cultiva- 
tion, you  may  have  them  for  that  purpose;  in  other  words, 
we  will  give  them   to  you  if  you  will  use  them.     Con- 

1  Hodge  V.  Donald,  55  Tex.  344,  350. 
*  Yates  V.  Houston,  3  Tex.  433. 


1201  PRINCIPLES    OF    CONSTRUCTION.  §  870 

ditions  which  require  the  performance  of  services  are 
not  onerous  in  the  sense  of  the  Spanish  hiw,  so  as  to 
convert  the  transaction  into  one  of  contract,  wlien  they 
are  rendered  by  the  grantee  for  his  own  benefit;  they 
are  only  so  when  rendered  for  the  benefit  of  the  grantor, 
or  parties  other  than  the  grantee.  They  do  not  differ 
in  that  respect  from  the  payment  of  money,  wliich 
it  would  be  absurd  to  say  could  be  made  by  the  grantee 
to  himself."^  In  Louisiana,  the  court  in  spealdng 
of  these  grants  observed:  "It  was,  however,  said  that 
tlie  object  in  making  these  grants  was  to  encourage  the 
settlement  of  the  country;  and  that  to  carry  that  object 
into  effect  it  was  necessary  the  lands  should  be  considered 
as  given  to  both  husband  and  wife.  To  this  it  might  be 
answered,  and  with  great  force,  that  if  the  government 
were  of  that  opinion,  it  is  strange  they  did  not  at  once 
say  so,  and  by  making  the  concession  in  the  name  of 
both,  place  the  matter  beyond  doubt;  and  not,  by  grant- 
ing it  to  one  of  the  spouses,  leave  it  to  the  operation  of  a 

^  In  Noe  V.  Card,  14  Cal.  576,  600.  On  a  petition  for  rehearing  Mr. 
Chief  Justice  Field  said  (p.  610) :  "  Under  all  systems,  donations  are  of 
three  classes — pure,  remuneratory,  and  conditional.  They  are  pure 
when  made  without  condition  in  the  exercise  of  a  spirit  of  liberality  as 
charities.  They  are  remuneratory  when  required  by  no  legal  obligation, 
Ijut  are  made  from  a  regard  for  services  rendered.  Such  were  pensions ; 
sucli  was  the  character  of  the  grants  of  land  made  in  many  instances  to 
officers  of  the  Revolution.  They  are  conditional  when  accompanied  with 
provisions  intended  to  secure  the  purposes  for  which  they  are  made. 
These  provisions  may  often  impose  the  discharge  of  burdensome  and  ex- 
pensive duties  without  changing  the  character  of  the  transactions. 
Grants  of  land  for  institutions  of  benevolence  or  instruction,  for  hospitals, 
schools,  asylums,  and  the  like,  are  generally  of  this  class.  Contlitiona 
annexed  to  such  grants,  that  the  institutions  shall  be  established,  only 
operate  as  a  requirement  that  the  lands  shall  be  appropriated  for  the  pur- 
poses for  which  they  are  granted.  The  performance  of  the  condition  does 
not  constitute  a  consideration  in  the  nature  of  a  price,  thereby  convert- 
ing the  transaction  into  sales.  This  is  so  obviously  true  as  to  require  no 
argument  for  its  support.  The  counsel  appears  to  be  impressed  with 
a  conviction  that  the  annexation  of  conditions  which  require  labor  or 
expenditures,  necessarily  converts  grants  into  sales.  That  such  is  the 
effect  only  of  conditions,  the  performance  of  wliich  is  for  tlie  benefit  of 
the  grantors  or  persons  other  than  tlie  grantees,  we  think  we  have 
shown  in  the  opinion  already  rendered." 
DEKbs,  Vol.  11.  —76 


§  870  PRINCIPLES    OF    CONSTRUCTION.  1202 

positive  law  which  repelled  the  idea.  But  if  we  could 
enter  into  political  considerations,  in  order  to  ascertain 
whether  they  could  repeal  statutes,  we  would,  in  this  case, 
be  led  to  the  examination  of  a  nice  and  refined  question 
of  policy,  in  relation  to  the  effect  on  national  prosperity, 
of  giving  to  the  wife  a  distinct  interest  in  the  property 
acquired  during  marriage;  one  on  which  men  would  be 
found  to  differ,  according  to  their  education  and  particu- 
lar modes  of  thinking.  Some  nations  whose  fate  has 
been  as  prosperous  as  those  of  any  community  with  whose 
history  we  are  acquainted,  proceed  on  an  entirely  oppo- 
site principle,  and  act  on  the  idea  that  domestic  felicity, 
and  consequently  public  happiness,  are  best  promoted  by 
considering  the  acquisitions  made  during  coverture  as  be- 
longing to  the  husband  alone.  It  is  true  the  Spanish  law 
viewed  this  matter  in  a  very  different  light,  but  the  same 
law  makes  a  positive  exception  in  respect  to  donations, 
and  the  political  consideration  is  surel}"  not  so  clear  as  to 
authorize  us  to  make  a  distinction  where  the  legislator 
has  made  none.  On  the  contrary,  it  may  be  as  readily 
conceived  that  those  to  whose  care  the  colonization  of  this 
country  was  intrusted,  though  strangers  might  be  invited 
into  it,  and  settlements  formed  with  as  much  facility  by 
giving  all  the  land  to  the  husband,  as  by  giving  it  to  the 
husband,  wife,  and  children.  The  father,  as  head  of  the 
family,  had  a  right  to  select  his  place  of  residence;  the 
wife  was  bound  to  follow  him.  It  was  natural  he  should 
go  to  the  place  where  the  most  advantages  were  conferred 
on  Mm;  where  he  knew  in  the  event  of  losing  his  life 
from  the  perils  and  sufferings  of  a  first  settlement,  that 
the  objects  which  induced  him  to  come  there  would  go  to 
his  children;  and  not  be  divided  with  those  of  another 
bed,  in  case  his  wife  survived  him  and  married  another 
man."  ^ 

^  Frique  v.  Hopkins,  4  Martin,  N.  S.,  212,  219.  In  Gayoso  de  Lemos 
V.  Garcia,  1  Martin,  N.  S.,  324,  333,  the  court  say :  "The  title  of  the  plain- 
tiffs is  founded  on  a  grant  made  to  their  lather  during  marriage,  and  it 
has  been  urged  that  the  land  thus  acquired  entered  into  and  made  a 
part  of  the  community  subsisting  between  husband  and  wife.    "Whatever 


1203  PRIXCIPLES    OF    CON'STRUCTION.  §  870 

§  871.  Land  purchased  by  earning-s  of  wife. — Prop- 
erty purchased  with  money  earned  by  the  wife  during 
marriage  is  community  property  unless  it  appear  that 
the  husband  intended  to  give  the  wife  the  money  earned 
by  her,  in  which  case  the  title  taken  by  her  would  be  con- 
sidered a  gift/  If  the  purchase  price  for  a  conveyance  of 
land  is  formed  of  money  due  for  services  as  a  school 
teacher  performed  by  the  wife,  the  property  will  be  pre- 
sumed to  belong  to  the  community.-  If  a  husband  exe- 
cute a  deed  to  his  wife,  she  cannot,  as  against  a  purchaser 
under  a  prior  recorded  deed,  be  considered  a  bona  fide 
purchaser,  unless  the  consideration  for  the  conveyance 
was  paid  from  her  separate  means.  If  the  consideration 
paid  is  a  part  of  the  community  property,  she  cannot,  as 
she  has  paid  herself  no  valuable  consideration,  be  deemed 
an  innocent  purchaser,  the  deed  from  her  husband  in 
that  case  being  considered  as  a  gift.^  The  rule  as  to  de- 
termining whether  land  purchased  with  money  earned 
by  the  wife  is  her  separate  property  or  not,  is  not  altered 
by  the  fact  that  the  husband  collected  the  money,  exe- 
cuted the  deed  without  the  wife's  knowledge,  for  the  pur- 
pose of  reimbursing  her,  nor  by  the  fact  tluit,  as  between 
themselves,  he  considered  the  money  as  the  separate 
property  of  his  wife.*  The  husband  in  such  a  case  can- 
not act  as  the  agent  of  his  wife  to  contract  with  himself, 
without  the  exercise  by  the  wife  of  her  own  will.^ 

support  this  argument  may  derive  from  the  practice  which  we  believe 
has  prevailed  in  some  parts  of  the  State  to  regard  lands  granted  by  the 
sovereign  as  property  common  to  both  spouses,  it  is  certain  that  it  is 
not  only  unsupported  by  authority,  but  that  the  law  most  positively 
says  it  shall  not  be  common  to  both;  but  that  it  shall  belong  exclusively 
to  the  individual  to  whom  the  king  grants  it."  See,  also,  Kouquier  i-. 
Rouquier,  5  Martin,  N.S.,  98;  16  Am.  Dec.  186;  Hughey  v.  Barrow,  4  La. 
An.  250;  Wilkinson  v.  American  Iron  Co.,  20  Mo.  122. 

'  Johnson  i-.  Burford,  39  Tex.  242;  Pendergast  v.  Cassidy,  8  La.  Ann. 
96 ;  Lake  v.  Lake,  4  West  Coast  Kep.  174 ;  Isaacson  v.  Mentz,  33  La. 
Ann.  595. 

'  Pearce  v.  Jackson,  61  Tex.  642. 

»  Pearce  v.  Jackson,  01  Tex.  642. 

*  Pearce  v.  Jackson,  61  Tex.  642. 

'  Pearce  v.  Jackson.  61  Tex,  642. 


§  872  PRINCIPLES    OF    CONSTRUCTION.  1204 

'  §  872.  Gift  to  husband  or  wife. — A  deed  of  the  com- 
munity property  to  the  wife  by  the  husband,  made  when 
he  is  free  from  debts  and  liabilities,  transfers  the  title  to 
her  as  her  separate  estate.  The  transaction  is  a  gift,  and 
the  property  conveyed  will  not  be  liable  for  debts  con- 
tracted by  him  after  the  execution  of  the  deed.^  Where 
a  husband  purchases  land  with  funds  belonging  to  the 
community,  and  causes  the  deed  to  be  made  out  in  the 
name  of  his  wife,  with  intent  that  she  shall  hold  the  land 
conveyed  as  her  separate  property,  the  transaction  is  a  gift 
from  the  husband  to  the  wife.^  The  same  effect  results  if 
the  consideration,  instead  of  money,  is  a  debt  due  from  the 
grantor  to  the  husband,^  The  general  rule  is,  that  where 
a  husband  has  a  conveyance  of  land  made  to  his  wife,  he 
intends  it  as  an  advancement.  It  might  be  imagined 
that  a  different  rule  would  prevail  where  the  principles 
relating  to  community  and  separate  property  obtain. 
One  of  the  reasons  advanced  in  favor  of  the  rule  that 
such  a  conveyance  became  an  advancement,  was  that 
the  wife  could  not  be  a  trustee  for  the  husband,  and 
hence  there  was  no  ground  for  the  operation  of  the  doc- 
trine of  resulting  trusts.  In  a  case  in  Texas,  the  court, 
in  considering  the  effect  of  a  conveyance  to  the  wife,  said 
the  principle  that  the  wife  could  not  be  a  trustee  "has 
little  or  no  force  under  our  system  of  laws  and  of  mari- 
tal rights.  The  right  of  the  wife,  under  our  laws,  to 
hold  property,  is  coequal  with  that  of  the  husband;  and 
upon  evidence  it  may  be  shown  that  property  in  the 
name  of  one  is  really  held  for  the  benefit  of  the  other.  It 
is  very  true,  that  the  wife  is  under  the  burthen,  or  as  the 
law  intends,  under  the  protection  of  some  legal  disabili- 
ties, even  with  reference  to  her  separate  property;  but 
these  have  reference  to  the  mode  of  alienation,  and  not 
to  any  claim  of  the  husband   over   such   property,  jure 

^  Peck  V.  Brummagim,  31  Cal.  440;  89  Am.  Dec.  195. 

»  Read  v.  Rahm,  65  Cal.  343;  Higgins  v.  Higgins,  46  Cal.  259. 

•  Read  v.  Rahm,  65  Cal.  643.  See,  also,  Morrison  v.  Wilson,  13  Cal. 
494;  73  Cal.  593;  Shanahan  v.  Crampton,  92  Cal.  9;  Swain  v.  Duane,  48 
Cal.  358;  McComb  v.  Spangler,  71  Cal.  418. 


1205  PRINCIPLES  OF  CONSTRUCTION.  §  872 

uxoris,  for  he  has  none  except  that  of  management  and 
its  incidents.  At  all  events,  where  the  fundamental  prin- 
ciple of  the  marital  relation  is,  that  whatever  may  be  the 
unity  of  persons  there  is  no  unity  of  estates,  there  can  be 
no  such  rule  as  that  the  wife  cannot  be  a  trustee  for  the 
husband  in  any  sense  which  would  preclude  evidence 
showing  that  although  property  is  in  her  name,  it  was 
intended  for  the  benefit  of  the  husband."^  The  court 
then  proceeds  to  discuss  the  effect  of  such  a  conveyance 
under  the  laws  of  that  State.  "The  rational  foundation 
for  the  presumption  or  the  wife  is,  that  the  purchase  is 
intended  as  a  provision  for  her;  and  this  presumption 
will  hold  as  well  under  our  system  as  where  the  rights  of 
the  wife  are  not  so  much  favored.  It  may,  and  would, 
under  the  operation  of  our  laws,  be  generally  more  easily 
rebutted  than  it  would  be  where  the  wife  has  no  interest 
in  community  property,  and  a  very  restricted  right  to 
separate  estate.  The  necessity  for  a  provision  would  not 
so  often  exist  in  this  State  as  in  others,  where,  by  opera- 
tion of  law,  the  great  proportion  of  the  wife's  property  is 
absorbed  by  the  husband.  But  the  necessity  might  and 
would  often  exist  in  fact.  The  property  of  the  wife  might 
not  be  large,  or  in  proportion  to  her  condition  and  situ- 
ation in  life;  and  in  fact,  though  eminent  advantages  are 
afforded  the  wife  by  our  laws,  yet  her  condition  is  not  so 
much  enlarged  as  to  repel  the  presumption  of  benefit 
from  a  purchase  made  by  a  husband  in  her  name,  out  of 
her  own  separate  funds.  The  legal  effect  and  operation 
of  the  deed  is  to  vest  the  property  in  the  wife.  This  effect 
would  be  rebutted,  in  case  a  stranger  were  the  nominee 
in  the  purchase.  But  the  wife  is  not  as  a  stranger  to  the 
husband.  She  has  distinct  rights  and  a  separate  estate, 
but  he  is  bound  for  her  support  aud  maintenance,  not 
only  by  law,  but  from  the  impulses  of  affection;  and  a 
conveyance  to  her,  when  the  purchase  money  is  advanced 
by  himself,  is  not  to  be  presumed  prima  facie  an  arrange- 
ment for  his  convenience,  but  as  importing  to  the  wife  a 

1  Smith  V.  Strahan,  16  Tex.  314,  321 ;  67  Am.  Dec.  622. 


§§  872  a,  873     principles  of  construction.  1206 

substantial  benefit,  and  vesting  in  her  the  whole  interest, 
as  well  legal  as  beneficial."^ 

§  872  a.      Subsequently    acquired    title    passes. — The 

presumption  arising  from  a  conveyance  made  by  a  hus- 
band to  his  wife,  where  apt  words  of  grant  are  used  with- 
out other  words  in  any  part  of  the  deed  indicating  an 
intention  to  convey  a  less  estate,  is  that  a  fee-simple  title 
passes  to  her.  If  the  husband  had,  prior  to  the  execution 
of  the  deed,  executed  a  deed  of  trust  to  secure  the  payment 
of  a  debt,  the  reconveyance  of  the  naked  legal  title  subse- 
quently by  the  trustees  to  the  husband  does  not  inure  to 
the  benefit  of  the  community.  B}''  virtue  of  the  husband's 
former  grant  to  the  wife,  the  title  so  conveyed  to  him  by 
the  trustees  passes  by  operation  of  law  to  her.^ 

§  873.  Voluntary  g-ift  in  fraud  of  wife. — While  gen- 
erally the  husband  has  the  sole  right  to  alienate  or  en- 
cumber the  property,^  yet  he  cannot  make  a  voluntary 
gift  for  the  purpose  of  defrauding  the  wife.  In  an  early 
case  in  California  the  court  said:  "  But  we  think  it  clear 
that  the  law,  notwithstanding  its  broad  terms,  will  not 
support  a  voluntary  disposition  of  the  common  property, 
or  any  portion  of  it,  with  the  view  of  defeating  any  claims 
of  the  wife."*  And  later  the  court  remarked  of  this  re- 
striction upon  his  power:  "This  springs  from  the  relation 
of  the  parties  and  their  title  to  the  property,  both  spouses 
being  jointly  entitled  to  the  property,  though  the  husband 
has  the  entire  management  and  control  of  it,  and   can 

1  Smith  V.  Strahan,  16  Tex.  314,  322;  67  Am.  Dec.  622.  This  is  but  a 
presumption,  liowever,  and  not  conclusive.  In  Rich  v.  Tubbs,  41  Cal. 
34,  where  the  husband  purchased  land  with  tlie  separate  property  of  liia 
wife,  taking  the  deed  in  his  own  name,  it  was  held  that  as  between  the 
husband  and  wife,  the  land  so  purchased  was  also  the  separate  property 
of  the  wife. 

«  Klumpke  v.  Baker,  68  Cal.  559. 

^  Brewer  v.  Wall,  23  Tex.  588 ;  76  Am.  Dec.  76 ;  Ranney  v.  Miller,  51 
Tex.  263;  Higgins  v.  Johnson,  20  Tex.  396;  70  Am.  Dec.  394;  Wright  v. 
Hays,  10  Tex.  132;  60  Am.  Dec.  200;  Prinn  v.  Barton,  18  Tex.  206.  But 
in  Washington  Ty.,  see  Code,  §  2410. 

*  Smith  V.  Smith,  12  Cal.  216,  225;  73  Am.  Dec.  533. 


1207  PRINCIPLES    OF    CONSTRUCTION.  §  873 

pass  the  title  in  his  name  alone.  All  persons  occupying 
a  fiduciary  relation  are  in  a  like  manner  disabled  from 
disposing  of  the  trust  property,  for  the  purpose  of  defraud- 
ing those  who  are  interested  in  it."^  In  a  subsequent 
case  the  court  laid  down  this  as  the  law:  "A  deed  of  gift 
of  a  portion  of  the  common  property  by  the  husband  is 
not  void  per  se.  If  the  gift  be  made  with  the  intent  of 
defeating  the  claims  of  the  wife  in  the  common  property, 
the  transaction  would  be  tainted  with  fraud.  In  the  ab- 
sence of  such  fraudulent  intent,  a  voluntary  disposition  of 
a  portion  of  the  property,  reasonable  in  reference  to  the 
whole  amount,  is  authorized  by  the  statute,  which  gives 
to  the  husband  the  absolute  power  of  disposition  of  the 
common  property,  as  of  his  own  separate  estate."^  But  it 
seems  that  she  cannot  bring  an  action  to  set  aside  the 
conveyance  during  tlie  existence  of  the  marriage  tie.'  In 
Texas  it  is  held  that  if  the  husband  abandons  the  man- 

1  Peck  V.  Brummagim,  31  Cal.  440,  447,  per  Mr.  Justice  Rhodes; 
89  Am.  Dec.  195. 

*  Lord  V.  Hough,  43  Cal.  581,  585. 

'  Greiner  v.  Greiner,  58  Cal.  115,  and  cases  cited.  In  Ray  v.  Ray,  1 
Idaho  (.N.  S.),  566,  579,  the  court,  speaking  of  the  effect  of  a  sale  after  a 
voluntary  separation  and  before  a  legal  separation,  say:  "The  point 
presented  for  our  consideration  is  simply  this :  Was  the  sale  of  the  prop- 
erty by  Ray  to  Dangel,  after  the  thirty-first  day  of  January,  the  day  of 
the  voluntary  separation  by  his  wife,  and  before  the  legal  sepuration  was 
effected  in  the  divorce  suit,  a  valid  sale,  or  was  it  a  fraud  per  se  upon  the 
wife,  who  had,  or  was  about  to  institute  a  suit  for  a  divorce,  and  a  division 
of  the  common  property?  The  answer  to  this  must  be  that  the  sale  was  a 
valid  one,  so  far  as  it  i^necessary  to  consider  it  in  this  case.  The  law  gave 
him  tlie  absolute  ri^htof  disposal,  as  much  so  as  if  it  had  been  his  sepa- 
rate estate :  Van  Maren  v.  Johnson,  15  Cal.  311.  The  mere  act  of  volun- 
tary separation  by  the  wife,  even  with  the  expressed  intention  of  bringing 
her  suit  for  a  division  of  the  property,  did  not  of  itself  change  the  char- 
acter of  the  community  property,  and  vest  it  in  herself,  in  her  individual 
riglit.  Her  husband  retained  the  same  absolute  control  and  power  of 
disj.osition  over  it,  under  such  circumstances,  as  he  possessed  before  the 
separation,  and  any  sale  made  by  him  to  another  in  good  faith,  and  for 
an  adequate  consideration,  was  as  valid  in  law  as  though  no  separation 
had  taken  place :  Lord  v.  Hough,  43  Cal.  585.  The  sale,  under  such  cir- 
cuinstatices,  was  as  much  for  her  benefit  as  for  lier  husband's.  Thecon- 
sid.-ration  received  became  a  substitute  for  the  property  sold  as  common 
property,  and  inured  equally  to  the  benefit  of  tlie  husband  and  v\ife." 


§  874  PRINCIPLES    OF    CONSTRUCTION.  1208 

agement  of  the  community  property,  and  deserts  his  wife 
and  country,  and  his  absence  is  prolonged  for  several 
years,  his  right  of  control  will  cease,  and  the  wife  becomes 
vested  with  the  control  of  the  common  property.* 

§  874.     Title  acquired  after  voluntary  separation. — All 

title  acquired  by  either  party  after  marriage,  save  by 
gift,  devise,  or  descent,  is  community  property,  and  its 
character  as  such  is  not  changed  by  the  fact  that  be- 
fore its  acquisition  the  parties  have  separated  by  mu- 
tual consent,  but  without  a  decree  of  divorce.  In  a 
case  in  Texas,  the  court  considered  the  effect  of  some 
prior  decisions  determining  conjugal  and  matrimonial 
rights  of  parties  that  originated  under  the  Spanish  law, 
which  gave,  under  certain  rules  and  limitations,  effect  to 
a  second  and  putative  marriage,  while  the  parties  to  the 
first  were  still  living,  and  the  marriage  had  not  been  dis- 
solved. The  court  said  of  these  decisions:  "But  the 
laws  under  which  such  cases  have  been  determined 
cannot  be  invoked,  nor  can  those  decisions  furnish  reason 
or  authority  to  ascertain  the  effect  of  a  putative  marriage 
under  a  system  of  law  which  recognizes  but  one  valid  and 
subsisting  marriage  to  continue  and  endure  until  death, 
or  until  it  is  dissolved  by  judicial  decree.  The  validity 
under  the  Spanish  civil  law  of  a  putative  marriage  car- 
ried with  it  the  ordinary  consequences  of  legality;  it 
being  a  lawful  marriage,  the  contract  established,  there- 
fore, a  community  of  rights  between  the  parties  to  it;  its 
legality  was  essential  to  induce  that  consequence.  The 
converse  must  be  likewise  true — that  if  it  was  not  a  law- 
ful marriage,  the  incident  of  community  rights,  which 
belong  only  to  a  lawful  conjugal  partnership,  will  not  at- 
tach to  it.  The  law  of  our  State  then  impresses  upon  the 
marriage  relation  inflexible  and  continuous  durability, 
and  at  its  formation,  ipso  facto,  establishes  a  community 

^  Wright  V.  Hays,  10  Tex.  133;  60  Am.  Dec.  200;  Lodge  v.  Leverton, 
42  Tex.  21;  Kelley  v.  Whittemore,  41  Tex.  648;  Zimpelman  v.  Robb,  53 
Tex.  281. 


1209  PRINCIPLES    OF    CONSTRUCTION.  §   8"<'4 

of  interest  in  all  property  that  may  be  thereafter  acquired 
by  either  of  the    matrimonial  partners,  except  that  ac- 
quired by  gift,  grant,  or  descent.     Under  our  law  it  may 
be  said,  as  it  is   expressed  by  the   Louisiana  Civil  Code, 
that  every  marriage  superinduces,  of  right,  partnership 
or  community  in  all  acquisitions.     This  conjugal  partner- 
ship is  not  established  upon  the  basis  of  equality  of  con- 
tribution of  labor  or  capital  by  the  parties  to  it,  and  it 
exists  and  is  enforced  under  principles   which  recognize 
perfect  union  and  equality  of  enjoyment  of  gains,  and  the 
division  thereof,  regardless  of  all  inequalities  induced  by 
accident,   misfortune,  disease,  idleness,  or  even  wasteful 
habits  of  one  or  the  other  of  the  spouses.     Such  was  the 
attribute  assigned  to  the  system    by  the   Spanish   civil 
law We  have  adopted  this  civil-law  rule  as  it  ap- 
plies to  the  marital  relation,  ingrafting  it  upon  our  com- 
mon-law contract  of  marriage,  which,  as  we  have  shown, 
recognizes  no  second  contract  of  that  character,  nor  con- 
jugal relation  with  other  persons  during  the  continuance 
of  the  lawful  marriage,  unless  the  relation  is  lawfully  dis- 
solved.    In  adopting  the  community  system,  as  it  may  be 
termed  for  convenience  of  expression,  neither  the   civil 
law  governing  the    subject  of  marriage  nor    the  entire 
system  of   acquests  and  gains  was  made  a  part  of  our 
law.     The  enactments  which  regulate  the  subject  in  this 
State  are  specific   and  definite   statutory  rules,  and   the 
civil  law  is  not  incorporated  with  them,  nor  is  it  further 
accepted  than  as  it  may  have  been  enacted  in  the  statute. 
Therefore,   the    qualifications    and    modifications   of   the 
operation  of  the  community  system  in  civil-law  States,  as 
Louisiana,  or  in  civil-law  countries,  or  those  under  civil- 
law  jurisdiction,  as  Spain,  France,  and  Texas   as  it  once 
was,  will  not  have  application   in  determining  how  far 
marital    rights   to    property   claimed    under    a   marriage 
which   is   governed  by   common-law   principles,    will    be 
affected  by  a  second  or  putative   marriage  recognized  as 
valid  under  the  civil  law."'     Tlio  court  then  referred  to 

»  Kouth  V.  Routh.  57  Tex.  589,  595. 


§  874  PRINCIPLES    OF    CONSTRUCTION.  1210 

some  decisions  made  upon  the  civil  law,  showing  that  the 
terms  of  that  law  provided  for  the  forfeiture  of  rights  in 
certain  cases,  and  continued:  "In  the  present  state  of  our 
decisions,  therefore,  it  may  be  concluded  that  there  has 
not,  as  yet,  been  laid  down  a  rule  whereb}''  to  determine 
the  limits  within  which  the  wife  is  secure  against  the  for- 
feiture, by  her  fault  or  misconduct,  of  her  statutory  right 
to  a  share  in  the  community.  Her  status  as  wife  is 
fixed;  the  right  of  property  she  acquires,  the  duties  and 
disabilities  imposed  upon  her  by  the  marriage,  are  pre- 
cisely defined,  but  neither  by  dicta  nor  decision  has  it  yet 
been  determined  what  acts,  facts,  or  circumstances,  while 
the  duties,  disabilities,  and  burthens  of  the  contract  still 
attach  to  her,  shall  divorce  her  from  the  rights  of  prop- 
erty she  acquired  by  the  same  contract.  The  facts  of  this 
case  do  not  require  us  to  establish  that  important  bound- 
ary line  in  the  separation  of  these  important  rights  more 
definitely,  if  it  should  be  drawn,  than  to  determine  the 
question  in  a  negative  form,  without  attempting  to  pre- 
scribe a  rule  or  principle  for  the  entire  subject  under 
other  phases  and  facts.  The  principle  referred  to,  how- 
ever, is  intimately  associated  with  the  case  before  us,  and 
with  the  operation  of  the  principle  that  marriage  attaches 
to  it  as  a  sequence,  the  continued  right  of  the  wife  to  an 
equal  interest  in  the  community,  until  that  right  is  in 
some  mode  recognized  by  the  law  forfeited;  and  with  the 
unquestionable  proposition  that  the  existence  merely  of 
cause  for  divorce  does  not  necessarily  impair  her  mari- 
tal rights  to  property;  which  rights  coexist  with  the 
contract  of  marriage — a  part  of  its  essence — irrespec- 
tive of  any  mere  balance  sheet  to  be  struck  between  her- 
self and  her  husband  on  account  of  their  respective 
moral  or  conjugal  merits  or  demerits,  or  that  would  show 
as  a  debit  against  her,  that  her  husband  may  have  had 
just  grounds,  which  he  had  never  legally  asserted,  for  ter- 
minating by  law  his  relations  with  her.  Slight  reflection 
even  is  sufficient  to  suggest  the  difficulties  that  would  at- 
tend the  efforts  of  courts  to  establish,  on  consistent  and 


1211  PKI^•cl^LEs  of  construction.  §  871 

harmonious  principles,  rules  to  forfeit  for  causes  of  di- 
vorce, and  for  delinquencies  to  matrimonial  obligations, 
marital  rights  of  property  without  encroachment  upon  the 
province  of  the  lawmaking  power;  and  also  without  being 
involved  in  the  most  serious  embarrassment  in  rest- 
ing them  upon  any  other  than  their  own  arbitrary  selec- 
tion of  the  particular  circumstances  under  which  they 
should  be  applied.  The  varying  course  of  uncongenial 
married  life,  its  bickerings,  quarrels,  wrongs,  sometimes 
mutually  suffered,  its  condonations  and  fresh  ruptures 
and  recurring  returns  to  mutual  respect  and  love,  when 
employed  as  a  basis  and  standard  to  regulate  the  rights  of 
the  parties  in  the  financial  branch  of  their  partnership, 
presents  a  medley  of  incongruous  elements  from  which  no 
legal  or  equitable  rule  could  be  applied,  consistent  with 
either  the  policy  of  the  law  governing  the  domestic  rela- 
tion of  husband  and  wife,  or  the  relative  rights  of  both 
of  the  parties  to  property  under  our  community  system."* 
Hence,  where  a  person  separated  from  a  second  wife  with- 
out a  decree  of  divorce,  and  removed  to  Texas  with  the 
children  of  his  first  marriage,  where  he  was  married  a 
third  time  to  one  who  did  not  know  that  he  had  a  wife 
then  living,  and  subsequently  acquired  real  estate  in 
Texas,  it  was  held  in  a  suit  after  his  death  between  the 
second  wufe  and  a  child  of  the  first  marriage,  that  the 
separation  did  not  operate  as  a  forfeiture  of  her  right  as 
a  party  to  the  community  to  the  such  subsequently  ac- 
quired land.^ 

1  Routh  V.  Eouth,  57  Tex.  589,  597. 

*  Routh  V.  Routh,  57  Tex.  589.  "  Their  vohintary  separation  and  liv- 
ing apart,"  said  the  court,  "<Hd  not  have  the  effect  to  forfeit  her  marital 
rights  in  the  community  of  gains;  nor  did  liis  causes  of  comphiint  against 
her  on  account  of  her  temper,  language,  and  treatment  of  his  chiMren, 
add  any  legal  force  to  the  fact  that  they  caused  him  to  abandon  her. 
'The  law  wisely  refuses,'  said  Judge  Porter,  in  Cole's  Wife  v.  His  Tfcirs, 
7  Martin,  N.  S.,  49,  18  Am.  Dec.  241,  'any  legal  effect  to  a  voluntary  sep- 
aration of  those  who  are  bound  by  the  most  solemn  obligations  to  live 
together.'  And  in  the  case  referred  to,  where  the  husband  acquired  all 
the  property  in  New  Orleans,  during  a  voluntary  separation  of  several 
years  preceding  his  death,  she  living  in  New  York,  and  never  having 


§   875  PRINCIPLES    OF    CONSTRUCTION.  1212 

§  875.  Gift  in  compeusation  for  services. — A  gift  made 
to  one  of  the  parties  to  the  marriage  is  the  separate  prop- 
erty of  the  party  to  whom  it  is  made,  and  the  fact  that  the 
gift  is  made  to  the  wife  in  compensation  for  services  ren- 

been  in  the  State  of  Louisiana,  she  was  held  to  be  entitled  to  her  equal 
one-half  interest.     When  Jonathan  Routh  established  himself  in  Texas, 
his  domicile  became  that  of  the  wife  for  all  the  purposes  of  her  beneficial 
interest  under  the  circumstances  of  their  separation.     In  Cole's  Wife  v. 
His  Heirs,  7  Martin,  N.  S.,  49,  18  Am.  Dec.  241,  the  able  jurist  who  de- 
livered the  opinion  showed  that  the  writers  on  the  civil  law,  where  the 
community  system  prevails,  who  treat  on  the  subject,  all  lay  it  down 
that  the  residence  of  the  parties  in  different  places  will  not  prevent  the 
community  from  existing.     That  the  separation  referred  to  by  them, 
which  terminates  the  community  interest,  ia  a  legal  one,  and  that  a 
judicial  sentence  is  necessary  to  destroy  the  community."     In  Newland 
V.  Holland,  45  Tex.  588,  Mr.  Justice  Moore,  in  delivering  the  opinion  of  the 
court,  says :  "  That  a  wife  who  voluntarily  and  without  any  just  and  rea- 
sonable cause,  abandons  and  separates  herself  from  her  husband,  and 
continues,  in  wanton  disregard  of  her  duties  as  a  wife,  to  live  separate  and 
apart  from  him  at  the  time  of  his  death,  is  estopped  and  precluded  from 
claiming  the  homestead  rights  given  by  the  constitution  and  statutes  to 
the  surviving  wife,  is  not  now  an  open  question  in  this  court.     See  Sears 
V.  Sears,  45  Tex.  557,  decided  at  a  former  day  of  this  term,  and  the  cases 
there  cited.     But  it  by  no  means  follows  that  the  court  can  hold  that  by 
so  doing  she  also  forfeits  her  entire  interest  in  the  community  estate,  or 
the  distributive  share  of  the  separate  property  of  her  deceased  husband, 
given  her  by  the  statute.     The  homestead  is  intended  for  the  comfort 
and  security  of  the  fkmily,  and  for  like  considerations  its  rights  and 
privileges  are  extended  to  and  conferred  upon  the  family  of  the  decedent 
after  his  death,  so  long  as  any  constituent  of  it  remains.     But  it  is  only 
when  there  is  a  family,  or  some  remaining  constituent  of  the  family  sur- 
viving him,  that  the  rights  and  privileges  of  the  homestead  subsist  or 
are  recognized  by  law.     Unquestionably,  when  the  wife  has  voluntarily 
and  without  cause,  withdrawn  from  and  destroyed  the  family,  ceased  to 
be  a  member  of  it,  it  would  be  mockery  to  say  that  she  is  reunited  to  or 
become  again  a  member  of  it  by  the  death  of  her  husband,  or  can  claim 
privileges  and  immunities  which  by  law  are  only  given  to  the  family  or 
■     some  surviving  constituent  of  it.     But  the  right  of  the  surviving  wife  to 
her  interest  in  the  community  property,  or  her  distributive  portion  of 
the  separate  estate  of  her  deceased  husband,  grows  out  of  and  depends 
upon  the  existence  of  the  marital  relation  between  the  parties,  and  not 
merely  upon  continued  existence  of  the  family.     It  may  be  that  by  the 
separation  the  community  interest  in  future  gains  will  cease ;  but  cer- 
tainly it  does  not  work  a  forfeiture  in  such  as  have  been  previously  ac- 
quired.   And  the  mere  withdrawal  of  the  wife  from  the  husband  and 
continuance  to  live  separate  and  apart  from  him,  however  unjustifiable 
and  improper  her  doing  so  may  be,  does  not  operate  and  cannot  be 


1213  PRINCIPLES    OF    CONSTRUCTION.  §  876 

dered  by  her  to  the  donor,  does  not  change  its  character 
as  separate  property.  The  husband  has  no  greater  power 
over  property  conveyed  to  the  wife,  under  these  circum- 
stances, than  he  has  over  any  other  separate  property  be- 
longing to  her.'  The  court,  after  considering  the  rules  of 
the  civil  law  as  to  donations,  observed:  "It  is  also  quite 
evident  that  it  is  entirely  consistent  with  the  nature  of  a 
title  by  'donation,'  that  the  donor  may  be  moved  by  rea- 
son of  services  rendered  by  the  donee  to  make  the  dona- 
tion, and  that  it  is  induced  by  such  consideration  does 
not  take  from  the  transaction  the  character  of  'a  dona- 
tion.'"=^ 

§  876.  Rebuttal  of  presumption  of  community  prop- 
erty.— The  presumption  that  property  conveyed  to  one  of 
the  parties  to  the  marriage  for  a  pecuniary  consideration 
is  community  property,  may  be  rebutted  by  showing  that 
the  purchase  money  was  the  separate  property  of  the  one 
to  whom  the  deed  is  made.^  Evidence  may  be  received 
for  the  purpose  of  showing  from  what  source  the  consid- 
eration proceeded,  on  the  same  principle  that  permits  the 
introduction  of  evidence  to  show  that  a  deed  absolute  on  its 
face  is  a  mortgage,  or  to  show  that  although  the  deed  is 
made  to  one  person  the  consideration  was  in  fact  paid  by 
another.     Neither  party  to  the  marriage  is  estopped  from 

treated  as  tantamount  to  a  severance  of  the  marital  relation.  Though 
the  husband  may  have  good  cause  for  annulling  the  marriage,  evidently, 
unless  he  chooses  to  do  this,  the  mere  improper  and  wrongful  with- 
drawal by  the  wife,  and  her  living  apart  from  him,  cannot  have  thia 
effect.  And  if  he  does  not  clioose  by  his  will  to  deprive  her  of  the  dis- 
tributive interest  in  his  separate  estate,  which  the  statute  gives  her  in 
the  absence  of  any  testamentary  disposition  of  his  property  by  her  hus- 
band, it  is  not  conceived  that  the  court  has  any  power  to  do  so."  See, 
as  to  the  effect  of  a  second  and  putative  marriage  under  the  Si)anish  law, 
while  the  jtarties  to  the  first  were  still  living,  and  the  marri.-X'.'e  had  not 
been  dissolved.  Smith  v.  Smith,  1  Tex.  621;  46  Am.  Dec.  121;  Lee  v. 
Smith,  18  Tex.  145;  Nichols  v.  Stewart,  15  Tex.  233. 

1  Fisk  V.  Flores,  43  Tex.  340. 

»  Fisk  V.  Flores,  43  Tex.  340,  433,  per  Moore,  J. 

»  Ramsdell  v.  Fuller,  28  Cal.  37;  87  Am.  Dec.  103;  Woods  v.  Whitney. 
42  Oal.  358;  IngersoU  v.  Truoljody,  40  Cal.  612 ;  Smith  v.  Boquet,  27  Tex. 
512;  reck  v.  Brummagim,  31  Cal.  411;  8U  Am.  Dec.  195. 


§  877  PRINCIPLES    OF    CONSTRUCTION.  1214 

showing,  as  against  the  other,  the  facts  connected  with  the 
transaction,  or  from  showing  that  the  grantee  did  not 
pay  the  consideration  from  his  or  her  separate  funds,  and 
between  them,  or  between  one  of  them  and  the  heirs  of 
the  other,  no  questions  involving  the  doctrine  of  notice 
can  be  mooted/ 

§  877.     Presumption    when    deed    is    made    to    wife. 

As  to  the  presumption  that  should  prevail  where  a  deed 
is  made  to  the  wife,  and  the  riglits  of  third  persons  are 
concerned,  the  courts  are  not  agreed.  In  California,  the 
rule  is,  that  if  the  deed  is  made  to  the  wife,  the  record 
gives  notice  to  all  the  world  that  the  property  may  be  the 
separate  property  of  the  wife.  This  fact  is  sufficient  to 
put  subsequent  purchasers  upon  inquiry,  and  if  they 
purchase  the  property  from  the  husband  they  do  so  at 
their  peril.^  On  this  point,  Mr.  Justice  Sawyer  said  that 
the  deed  in  question  was  sufficient  in  law  to  convey  a 
title  to  the  wife,  but  whether  by  it  the  estate  became 
separate  or  community  property,  depended  upon  a  fact 
dehors  the  deed,  although  ostensibly  the  intent  was  to  vest 
the  title  in  her.  The  justice  proceeded  to  say:  "It  did 
not  appear  on  the  face  of  the  deed  that  the  grantee  was  a 
married  woman,  or  that  being  a  married  woman,  the  con- 
sideration was  paid  out  of  her  separate  estate.  The  deed, 
then,  so  far  as  shown  on  its  face,  might  have  conveyed  a 
title  absolute  to  a  /erne  sole,  a  separate  estate  to  a  feme 
covert,  or  an  estate  in  common  to  both  husband  and  wife. 
Upon  the  best  view  for  plaintiff,  the  deed  upon  its  face 
was  equivocal.  But  it  afforded  to  all  persons  seeking  to 
acquire  title  under  it  a  clue  to  the  title,  which  they  were 
bound  to  pursue,  or  suffer  the  consequences  of  their  laches. 
The  grantee  is  a  woman.  The  presumption  of  law  is, 
that  she  is  sole,  and  prima  facie  a  conveyance  from  her 
would  pass  the  title.  But  she  may  be  married,  and  her 
deed  may  not  pass  the  title.     The  fact  as  to  whether  she 

^  Peck?'.  Brummagim,  31  Cal.  440;  89  Am.  Dec.  195. 
^  Eamsdell  v.  Fuller,  28  Cal.  37;  87  Am.  Dec.  103. 


1215  PRINCIPLES  OF  CONSTRUCTION.         §  878 

is  married  or  single,  all  parties  dealing  with  the  land 
must  ascertain,  or  omit  to  do  so  at  their  peril.  So,  also, 
if  a  grantee  of  a  conveyance  for  a  money  consideration  is 
a  married  woman  at  the  date  of  the  conveyance,  prima 
/acie  a  conveyance  by  the  husband,  in  his  own  name,  of 
the  land  so  conveyed  to  the  wife  will  be  presumed  to  pass 
the  title;  but  in  fact  it  may  not,  for  the  reason  that  the 
land  may  still  be  the  separate  property  of  the  wife,  which 
he  has  no  power  to  convey.  And  in  such  cases,  as  in  the 
case  last  mentioned,  all  parties  claiming  title  through  the 
husband  to  lands,  the  title  to  which  never  stood  in  his 
name,  must  ascertain  at  their  peril,  whether  he  did  in 
fact  have  the  power  to  convey."  ^ 

§  878.  The  rule  in  Texas. — The  question  considered 
in  the  preceding  section  has  been  before  the  court  in 
Texas,  and  a  conclusion  has  in  that  State  been  reached, 
at  variance  with  the  rule  prevailing  in  California.  In  one 
case  in  that  State,  Mr.  Justice  Moore  said:  "Our  whole 
system  of  marital  rights  is  based  upon  the  fact  tliat  acqui- 
sitions, either  of  the  joint  or  separate  labor  or  industry 
of  the  husband  or  wife,  become  common  property,  and,  as 
a  general  rule  deducible  from  this  principle,  all  property 
acquired  by  purchase  or  apparent  onerous  title,  whether 
the  conveyance  be  in  the  name  of  the  husband  or  of  the 
wife,  or  in  the  names  of  both,  is  prima  facie  presumed  to 
belong  to  the  community.  It  is  true  that  it  is  now  a  well- 
established  and  long-recognized  rule  of  procedure  in  our 
judicial  system,  as  between  the  parties  to  such  deeds, 
their  privies  in  blood,  purchasers  without  value  or  with 
notice,  to  affect  the  legal  import  of  such  deeds  by  parol 
evidence.  But  we  know  of  no  principle  upon  which  such 
evidence  can  be  received  for  the  purpose  of  explaining  or 
modifying  such  deeds,  after  the  proj)erty  has  passed  into 
the  hands  of  innocent  purchasers,  and  thereby  ingrafting 

»  Rampdell  v.  Fuller,  28  Cal.  43;  87  Am.  Dec.  103.  See,  also,  Peck  v. 
Vandeiiberg,  30  Cal.  30;  Melcalf  v.  Clark,  8  La.  Ann.  287;  Dominguez 
V.  Lee,  17  La.  295;  Gouor  v.  Gonor,  11  Kob.  (La.)  526. 


§  878  PRINCirLES    OF    CONSTRUCTION.  121G 

upon  it  a  trust  to  their  detriment.  Such  a  doctriue  would 
go  far  to  destroy  the  utility  of  written  evidences  of  title 
to  land,  and  the  registration  of  conveyances  for  the  pur- 
pose of  notice The  statute  authorizes  the  hushand, 

during  its  continuance,  to  dispose  of  all  community  prop- 
erty. That  the  title  of  it,  when  acquired  by  the  com- 
munity, was  taken  in  the  name  of  the  wife,  imposes  no 
additional  burthen  upon  the  purchaser  of  inquiring  as  to 
the  equities  of  the  husband  and  wife  in  respect  to  it."^ 
In  a  later  case  in  the  same  State,  the  court  says  that  the 
case  last  cited  was  decided  "on  the  ground  that  the  pur- 
chaser from  the  husband,  of  land  acquired  during  mar- 
riage, by  deed  of  bargain  and  sale  taken  in  the  name  of 
the  wife,  is  not  thereby  put  upon  inquiry  as  to  any 
equit}''  she  may  have  in  respect  to  it,  but  is  justified  and 
protected,  if  he  innocently  buys  it  as  community  prop- 
erty. The  decision  was  not  placed  on  the  ground  that  it 
was  inadmissible  to  prove  a  different  consideration  than 
that  recited  in  the  deed,  but  upon  the  broad  ground  that 
the  deed  could  not  be  modified  by  evidence  in  ingrafting 
on  it  a  trust  to  the  detriment  of  an  innocent  purcliaser. 
It  is  scarcely  necessary  to  say,  that  if  there  were  any 
recitals  in  the  deed  showing  that  the  consideration  was 
the  wife's  separate  estate,  or  that  the  conveyance  was  de- 
signed to  be  for  her  separate  benefit,  the  rule  would  be 
different."^  In  another  case  the  court  referred  to  the 
rule  prevailing  in  that  State,  that  a  purchaser  is  not  com- 
pelled to  inquire  what  equities  exist  between  husband 
and  wife,  where  a  deed  expressing  a  valuable  considera- 
tion conveys  land  to  a  married  woman,  and  said  it  could 
see  no  reason  why  the  same  principle  should  not  apply 
to  sales  made  by  the  husband  after  the  death  of  the  wife.^ 
In  Texas,  a  judgment  creditor  who  purchases  at  the  exe- 
cution sale  is  considered  a  bona  fide  purchaser.     Hence, 

1  Oooke  V.  Bremond,  27  Tex.  457 ;  86  Am.  Dec.  626. 
*  Kirk  V.  Navigation  Co.,  49  Tex.  213,  215,  per  Gould,  J. 
'  French  v.  Strumberg,  52  Tex.  92.    See  Veramendi  v.  Hutchins,  48 
Tex.  531. 


1217  PRINCIPLES    OF    CONSTRUCTION.         §§  879,  880 

under  the  rule  just  considered,  he  has  no  notice  that 
property  purchased  b}^  hiiu  at  such  sale  was  the  separate 
property  of  the  wife,  from  the  fact  that  the  deed  was 
made  to  her/ 

§  879.  Purchase  on  credit. — The  circumstance  that 
land  is  bought  on  credit  does  not  affect  its  character  as 
separate  or  community  property.  A  husband  bought 
land  on  credit  and  subsequently  paid  a  portion  of  the 
purchase  price  with  property  of  his  separate  estate,  and 
for  the  purpose  of  securing  the  remainder,  he  and  his 
wife  joined  in  a  note  and  executed  a  joint  mortgage  on 
the  property  purchased.  He  subsequently  sold  a  part  of 
the  land  at  a  price  yielding  him  a  profit,  and  with  a  part 
of  the  proceeds  derived  from  such  sale,  paid  the  note,  and 
with  a  sum  composed  of  the  balance  and  some  of  his  sep- 
arate property,  built  a  house  on  the  part  of  the  land  remain- 
ing unsold.  Such  land  and  the  building  thereon,  it  was 
decided,  were  to  be  considered  the  separate  property  of 
the  husband.^ 

§  880.  Tortious  possession  and  deed  in  consideration 
of  surrender  thereof. — A  party  before  his  marriage  was 
in  possession  of  a  tract  of  land  without  any  right  to  hold 
such  possession.  After  his  marriage  he  executed  a  deed, 
and  surrendered  possession  of  a  part  of  the  land  to  those 
lawfully  entitled  to  it.  In  consideration  of  this  fact,  the 
owners  of  the  land  conveyed  to  him  a  portion  of  it.  The 
court  decided  that  the  land  thus  acquired  by  the  husband 
was  community  property.^  Mr.  Justice  McKinstry  said  : 
"It  is  true  that  a  possession  of  lands  may,  under  some 
circumstances,  constitute  property.  But  as  between  the 
sole  and  exclusive  owner  of  a  tract,  and  one  who  has  in- 
truded himself  into  the  possession  without  right,  how  can 
the  latter  be  said  to  have  any  property  in  the  lands?  The 
owners  who  conveyed  to  the  defendant   their  title  may 

1  Wallace  v.  Campbell,  54  Tex.  87. 
'  Martin  v.  Martin,  52  Cal.  235. 
»  Pancoast  v.  Pancoaat,  57  Cal.  320. 
Dbeds,  Vol.  II.  — 77 


§  8S0  PRINCIPLES    OF    CONSTEUCTION.  1213 

have  been  induced  to  make  the  conveyance  to  save  tlieni- 
selves  the  annoyance  and  expense  of  litigation,  which, 
however,  could  only  have  resulted  in  a  judgment  in  their 
favor.  The  interchange  of  deeds  did  not  necessarily  in- 
volve a  recognition  by  the  owners  of  both  tracts  of  land 
of  any  estate  in  defendant.  The  ability  of  defendant  to 
give  trouble,  and  cause  expense  to  those  who  held  the 
Peralta  title,  by  withholding  from  them  the  possession 
for  a  time,  at  the  cost  of  a  judgment  against  him  for  res- 
titution (including  costs  of  suit,  and  perhaps  mesne 
profits),  cannot  be  termed  'properly  in  any  legal  sense. 
This  is  not  the  case  of  separate  property  acquired  by  one 
of  the  parties  to  the  marriage  contract  prior  to  the  mar- 
riage, and  which  has  simply  changed  its  form  after 
marriage.  Defendant  had  no  right  in  or  to  the  land 
before  his  marriage;  his  tortious  possession  could  give 
him  none  after  marriage."^ 

^  In  Paneoast  v.  Pancoast,  57  Cal.  320. 


CHAPTER   XXVI. 

COVENANTS. 

§  881.  Covenants. 

§  S82.  Construction. 

§  S83.  How  created. 

§  884.  Covenants  usually  found  in  deeds. 

§  885.  Covenant  for  seisin. 

§  886.  Ditferent  rule. 

§  887.  Covenant  for  seisin  of  indefeasible  estate. 

§  888.  By  what  the  covenant  of  seisin  is  brolien. 

§  889.  Broken  at  once  if  grantor  has  no  possession. 

§  890.  By  what  the  covenant  is  not  broken. 

§  891.  Seisin  of  grantee. 

§  892.  Burden  of  proof. 

§  893.  Covenant  for  right  to  convey. 

§  894.  Damages  for  breach  of  covenants  Of  seisin  and  right  to  con- 
vey. 

§  895.  Proof  of  real  consideration. 

§  896.  Mitigation  of  damages. 

§  897.  Knowledge  of  grantor's  want  of  title. 

§  898.  Value  of  land  as  measure  of  danuiges. 

§  899.  Undisturbed  possession  of  grantee. 

§  900.  Partial  breach. 

§  901.  Treating  partial  breach  as  entire. 

§  902.  Burden  of  proof  on  partial  breach. 

§  903.  Power  to  purchase  title. 

§  904.  Keeping  public  street  open. 

§  90.5.  Covenant  against  encumbrances. 

§  906.  Encumbrance  defined. 

§  907.  What  are  considered  encumbraneea. 

§  908.  Water  rights. 

§  909.  Right  to  use  stairway  in  common. 

§  910.  Public  highways  as  encumbrances. 

§  911.  Right  of  way  for  a  railroad. 

§  912.  Right  to  light. 

§  913.  Purchaser's  knowledge  of  encumbrance. 

§  914.  Parol  evidence  to  exclude  encumbrance  from  covenant. 

S  915.  Comments. 

§  916.  Diimatres  for  breach  of  covenant  against  encumbrances. 

S  917.  Special  Injury. 

(1J19) 


§  881  COVENANTS.  1220 

§  918.  Removal  of  encumbrance  by  purchase. 

§  919.  Burden  of  proof. 

§  920.  Wbere  encumbrance  cannot  be  removed. 

§  921.  CovL'iuuiL  lor  qait't  etijuyimnit. 

§  922.  Not  broken  by  wrongful  acts  of  others. 

§  923.  Exercise  of  right  of  eminent  domain. 

§  924.  Actual  eviction. 

§  925.  Purchaser  has  burden  of  proof  if  he  yields  to  adverse  title. 

§  926.  Comments. 

§  9L'7  Premises  in  possession  of  another. 

§  928.  Purchase  of  paramount  title. 

§  929.  Redemption  on  tax  sales. 

§  930.  Covenant  for  further  assurance. 

§  931.  Covenant  of  warranty. 

§  932.  Breach  of  covenant  of  warranty. 

§  933.  Right  of  joint  possession. 

§  934.  Damages  for  breach  of  covenants  of  quiet  enjoyment  and  of 

warranty. 

§  935.  Notice  to  the  covenantor  of  suit. 

§  936.  Comments. 

§  937.  Where  no  notice  is  given  to  the  covenantor. 

§  93.S.  Mortgagee  entitled  to  benefit  of  covenant. 

§  939.  Interest  and  counsel  fees  as  damages. 

§  940.  Covenants  running  with  the  land. 
§  940a.  Grantee  bound  by  acceptance  of  deed. 

§  941.  Markethouse. 

§  942.  Covenants  not  running  with  the  land. 
§  942  a.  Covenant  converted  into  lien. 

§  943.  Change  in  character  of  neighborhood. 

§  944.  Estoppel  from  covenants. 

§  945.  The  necessity  for  a  covenant. 

§  9Jf).  S^tatutory  regulation. 

§  947.  Limitations  on  this  rule. 

§  948  Esto]jpel  of  State. 

§  949.  Acquisition  of  title  by  trustee. 

§  950.  General  covenant  wlien  grantor's  interest  only  conveyed. 

§  951.  Estoppel  of  grantee. 

§  952.  What  covenants  will  create  an  estoppel. 

§  953.  Implied  covenants. 

§  954.  Restriction  of  covenants. 

§  955.  Liability  of  covenantor. 

§  956.  Covenant  to  pay  mortgage. 

§  957.  Failure  of  title. 

§  881.  Covenants.  —  Covenants  in  deeds  are  those 
clauses  or  agreements  whereby  one  party  stipulates  that 
certain  facts  are  true,  or  obligates  himself  to  perform  or 


1221  COVENANTS.  §  882 

forbear  doing  somethiug  to  or  for  tlie  other.^  "A  cove- 
nant may  be  defined  to  be  an  agreement  between  two  or 
more  parties,  reduced  to  writing,  and  executed  by  a  seal- 
ing and  delivery  thereof,  whereby  some  of  the  parties 
named  therein,  or  one  of  them,  engages  with  the  other  or 
others,  or  some  of  them,  therein  also  named,  that  some 
act  hath  or  hath  not  already  been  done,  or  for  the  per- 
formance or  nonperformance  of  some  specified  duty."  ^ 
They  may  be  either  express  or  implied.^  If  land  is  con- 
veyed as  bounded  upon  one  or  more  sides  by  a  way,  this 
is  not  a  description  merely,  but  an  implied  covenant  of 
the  existence  of  such  a  way.  "It  probably  entered  much 
into  the  consideration  of  the  purchase,"  said  the  court, 
"that  the  lot  fronted  upon  two  ways  which  would  be 
always  kept  open,  and,  indeed,  could  never  be  shut  with- 
out a  right  to  damages  in  the  grantee  or  his  assigns."  * 

§  882.  Construction. — The  rule  in  construing  cove- 
nants is  to  construe  them  most  strictly  against  the  cove- 
nantor and  most  favorably  to  the  covenantee.*  But  as  a 
covenant  is  a  part  of  a  deed,  it  is  subject  to  the  same 
construction  as  the  deed  itself,  and  should  receive  such  a 
construction  as  will  effectuate  the  actual  intent  of  the 
parties.^     A  penalty  annexed  to  a  covenant  for  its  uon- 

*  2  Blackst.  Com.  304 ;  Bacon  Abr.  tit.  Evidence. 

»  De  Bolle  v.  Pennsylvania  Ins.  Co.,  4  Wiiart.  68;  33  Am.  Dec.  38. 
And  see  Randel  v.  Oliesapeake  etc.  Canal  Co.,  1  Har.  (Del.)  233;  Green- 
leaf  V.  Allen,  127  Mass.  248.  Equity  will  enforce  at,'ainst  the  grantees  of 
the  original  covenantor,  a  covenant  to  use,  or  abstain  from  using,  tlie  land 
in  such  manner  as  the  original  covenantee  may  specify:  Hodge  v.  Sloan, 
107  N.  Y.  244;  1  Am.  St.  Rep.  816. 

»  Taylor  v.  Hopper,  62  N.  Y.  649;  Parker  v.  Smith,  17  Mass.  41:5;  9 
Am.  Dec.  157;  Emerson  v.  Wiley,  10  Pick.  310;  Frey  v.  Johnson,  22 
How.  Pr.  323. 

*  Parker  v.  Smith,  17  Mass.  413;  9  Am.  Dec.  157. 

'  Warde  v.  Warde,  16  Beav.  103 ;  Kandel  v.  Chesapeake  etc.  Canal  Co., 
1  Har.  (Del.)  154;  Hookes  v.  Swain,  Lev.  102;  Gifford  v.  First  Pros.  Soc. 
56  Barb.  114. 

*  Schoenberger  v.  Hoy,  40  Pa.  St.  132 ;  Watchman  v.  Crook,  5  Gill  &  J. 
239;  Ludlow  v.  McCrea,  17  Wend.  228;  Marvin  v.  Stone,  2  Cowen,  781. 
See  Burk  v.  Burk,  64  Ga.  632.  In  construing  a  covenant,  the  intention 
of  the  parties  should  not  be  gathered  by  reading  a  single  clause,  but  by 


§  883  COVENANTS.  1222 

performance  is,  where  the  primary  intent  is  that  the 
covenant  shall  be  performed,  regarded  merely  as  a  security. 
It  is  not  a  substitute  for  the  covenant,  and  it  is  immaterial 
that  such  a  covenant  follows  the  habendum  clause,  while 
tlie  use  in  other  respects  of  the  property  conveyed  is  re- 
strained by  other  covenants.^  Reference  in  a  deed,  for  the 
purpose  of  aiding  its  description,  to  another  deed  which 
is  declared  to  be  subject  to  a  mortgage,  does  not  quaiif}'' 
the  covenants  in  the  first  deed,  as  such  reference  is  for 
the  purpose  of  describing  the  land  and  not  the  title.^ 
"The  general  rule  should  be  carefully  observed,  that  cove- 
nants are  to  be  construed,  as  nearly  as  possible,  by  the 
obvious  intentions  of  the  parties,  which  must  be  gathered 
from  the  whole  context  of  the  instrument,  interpreted 
according  to  the  reasonable  sense  of  the  words." ^  A 
covenant  was  in  this  form:  ''The  said  parties  of  the  first 
part,  for  themselves,  heirs,  executors,  and  administrators, 
do  covenant,  grant,  bargain,  and  agree  to  and  with  the 
said  party  of  the  second  part,  his  heirs  and  assigns,  that 
they,  the  said  parties  of  the  first  part,  have  not  here- 
tofore done,  committed,  or  wittingly  or  willingly  suffered 
to  be  done  or  committed,  any  act,  matter,  or  thing  what- 
soever, whereby  the  premises  hereby  granted,  or  any  part 
thereof,  is,  are,  or  shall  or  may  be  charged,  encumbered 
in  title,  or  estate,  or  otherwise."  The  court  held  it  to  be 
a  covenant,  for  a  breach  of  which,  at  any  time  in  the 
future,  damages  might  be  recovered.* 

§  883.  How  created. — A  covenant  may  be  created  by 
any    language  showing    the  intention  of  the    parties    to 

the  whole  context,  and,  in  case  of  a  doubt  in  the  meaning,  by  considering 
those  surrounding  circumstances  as  the  parties  are  supposed  to  liave 
considered  when  their  minds  agreed :  Clark  v.  Devoe,  124  N.  Y.  120 ;  21 
Am.  St.  Rep.  652. 

^  Phoenix  Ins.  Co.  v.  Continental  Ins.  Co.,  87  N.  Y.  400.  In  this  case 
the  covenant  was  not  to  erect  any  building  adjoining  certain  premises 
which  depended  for  air  and  light  on  the  land  conveyed. 

*  Powers  V.  Patten,  71  Me.  583. 

*  Wadlington  v.  Hill,  18  Miss.  (10  Smedes  &  M.)  560,  562. 

*  Post  V.  Cumpau,  42  Mich.  91. 


1223  COVENANTS.  §  884 

bind  themselves.  No  particular  form  is  required/  ncr 
is  it  necessary  to  use  any  particular  word.  A  covenant 
maybe  created  without  using  the  word  "covenant"  in 
the  clause  containing  the  stipulation.^  A  covenant  may 
be  contained  in  a  recital  in  the  deed,  and  be  as  operative 
as  though  it  was  expressed  with  the  other  covenants.' 
As  it  is  a  promise,  the  question  is  what  was  the  under- 
standing of  the  parties.  A  single  sentence  may  contain 
several  covenants."*  Where  a  circuity  of  action  would 
arise  from  mutual  deeds,  otherwise  making  the  parties 
thereto  liable  to  each  other  upon  similar  covenants  rela- 
ting to  the  same  encumbrance,  they  will  be  construed  as 
mutually  satisfying  each  other.^  A  covenant  of  title  should 
be  taken  in  connection  with  the  terms  of  the  convey- 
ance.* The  covenants  may  extend  to  equitable  as  well  as 
to  legal  claims.'  But  it  is  held  in  a  deed  conveying  the 
legal  title,  that  the  existence  of  an  equitable  title  in 
another  arising  from  a  parol  agreement  for  a  conveyance, 
is  not  a  breach  of  any  of  the  usual  covenants.® 

§  884.     Covenants   usually  found  in  deeds. — It  is  not 

intended  to  give  the  practice  in  the  different  States  and 
England  concerning  the  insertion  of  covenants  in  deeds, 
or  to  discuss  at  length  what  is  understood  by  an  agree- 
ment to  give  a  deed  with  the  "usual  covenants."  While 
in  some  places  it  is  customary  to  give  a  deed  with  full 
covenants,  in  others  a  demand  for  a  deed  of  this  charac- 
ter would,  from  the  infrequency  with  which  a  convey- 
ance of  this  kind  is  given,  be  considered  as  implying  a 

»  Marshall  v.  Oralg,  1  Bibb,  379;  4  Am.  Dec.  647;  Sampson  w.  Es- 
terby,  9  Barn.  &  C.  505;  Rigby  v.  Great  Western  Ry.  14  Meos.  &  W. 
811 ;  Jackson  v.  Swart,  20  Johns.  85. 

»  Bull  V.  Follett,  5Cowen,  170;  Kendall  v.  Talbot,  2  Bibb,  G14;  Ran- 
del  V.  Chesapeake  etc.  Canal  Co.  1  Har.  (Del.)  151. 

»  Horry  v.  Frost,  10  Rich.  Eq.  109 ;  De  Forest  v.  Byrne,  1  Hilt.  43. 

*  Johnson  v.  Hollensworth,  48  Mich.  140. 
'  Silverman  v.  Loomis,  104  III.  137. 

*  Hall  V.  Scott  County,  2  McCrary  C.  0.  356. 
»  Diigger  V.  Oglesby,  99  III.  405. 

*  Wilson  V.  Irish,  57  Iowa,  184. 


§  8S4  COVENANTS.  1224 

doubt  concerning  the  validity  of  the  owner's  title.  The 
covenants  in  general  use  may  be  enumerated  as  those  of 
seisin,  right  to  convey,  against  encumbrances,  for  quiet 
enjoyment,  further  assurance,  and  warranty.  In  Califor- 
nia, the  Civil  Code  provides  that  "an  agreement  on  the 
part  of  the  seller  of  real  property  to  give  the  usual  cove- 
nants binds  him  to  insert  in  the  grant  covenants  of  'sei- 
sin,' 'quiet  enjoyment,'  'further  assurance,'  'general  war- 
ranty,' and   'against  encumbrances.'  "  ^     "  Covenants  for 

'  Civil  Code  Cal.  §  1733.  Mr.  Washburn,  in  his  treatise  on  Real  Prop- 
erty, vol.  3  (4th  ed.),  448,  says:  "The  three  covenants  ordinarily  found 
in  deeds  of  conveyance  in  the  Eastern  States  are  those  contained  in  the 
form  of  a  deed  heretofore  given,  namely,  of  seisin,  the  right  to  convey, 
against  encumbrances,  and  of  warranty.  In  the  English  deeds  there  is 
a  covenant  for  further  assurance,  which  is  also  found  in  deeds  in  use  in 
some  of  the  Middle  States,  and  a  covenant  of  quiet  enjoyment.  It  is 
said  that  the  covenant  of  seisin  is  not  in  use  now  in  England,  being  em- 
braced in  that  of  a  right  to  convey;  while  in  the  Western  States,  Penn- 
sylvania, and  the  Southern  States,  the  covenant  of  warranty  is  not 
infrequently  the  only  covenant  inserted.  In  Iowa,  a  covenant  of  war- 
ranty is  held  to  embrace  the  whole  three  above  mentioned.  It  is  said 
that  covenants  for  further  assurance  are  not  in  general  use  in  this  coun- 
try. In  Ohio,  the  usual  covenants  are  of  seisin  and  warranty"  :  Citing 
Williams  Real  Prop.  69,  and  Rawle's  note;  Caldwell  v.  Kirkpatrick, 
6  Ala.  60 ;  41  Am.  Dec.  36 ;  Van  Wagner  v.  Van  Nostrand,  19  Iowa,  426 ; 
Foote  V.  Burnet,  10  Ohio,  317,  329;  36  Am.  Dec.  90;  Armstrong  v. 
Darby,  26  Mo.  517 ;  Walk.  Am.  Law,  382. 

Mr.  Rawle  says:  "To  a  layman  it  would  seem  plain  that  if  one  were 
to  undertake  to  convey  an  estate  in  fee  simple,  which  he  professed  to 
hold  in  his  own  right,  and  not  fiduciarily,  he  must  himself  be  seised  of 
such  an  estate;  and  yet,  until  recently,  it  was  a  common  practice  of  con- 
veyancing in  England,  for  the  purpose  of  saving  the  expense  upon  a 
resale,  of  levying  a  fine  whereby  to  bar  the  dower  of  the  wife,  to  cause 
property  upon  its  purchase  to  be  conveyed  to  such  uses  as  the  purchaser 
should  appoint,  and,  in  default  of  appointment,  to  the  use  of  the  pur- 
chaser and  his  heirs.  And  it  has  been,  perhaps,  owing  to  this  custom 
that  the  covenant  for  seisin  has  been  for  more  than  half  a  century  gen- 
erally omitted  in  England,  and  in  its  place  substituted  the  covenant  for 
good  right  to  convey.  And  although,  by  a  recent  act  of  Parliament,  the 
estate  of  the  wife  is  now  passed,  as  with  us,  by  a  simple  separate  ac- 
knowledgment, yet  it  seems  to  be  customary,  in  the  most  modern  con- 
veyancing, to  omit  the  covenant  for  seisin.  The  usual  covenants,  then, 
in  the  case  of  a  sale,  are  those  of  good  right  to  convey,  for  quiet  enjoy- 
ment, against  encumbrances,  and  for  further  assurance As  to 

those  upon  this  side  of  the  Atlantic,  of  course  the  local  habit  and  usage 
varies  not  only  more  or  less  widely  between  the  different  States,  but 


1225  COVENANTS.  §  885 

title  are  those  covenants  in  a  deed  conveying  land  which 
are  inserted  for  the  purpose  of  securing  to  the  grantee  and 
the  covenantee  the  benefit  of  the  title  which  the  grantor 
and  covenantor  professes  to  convey.  Those  in  common 
use  are  five  in  number  in  England — of  seisin,  of  right  to 
convey,  for  quiet  enjoyment,  against  encumbrances,  and 
for  further  assurance — and  are  held  to  run  with  the 
land.  In  the  United  States,  there  is,  in  addition,  a  cove- 
nant of  warranty,  which  is  now  more  commonly  used 
than  any  of  the  others."^ 

§  885.  Covenant  for  seisin. — This  covenant  is  gener- 
ally expressed  by  the  clause  "  that  the  said  grantor  is  law- 
fully seised,"  or  "has  a  good  and  sufficient  seisin."  The 
word  "seisin"  has  different  significations.  It  may  mean 
actual  possession,  or  as  it  is  frequently  termed,  "seisin  in 
deed."  There  is  also  a  constructive  seisin,  exemplified  by 
the  case  of  a  tenant  for  years,  whose  possession  is  also  the 
possession  of  the  owner  of  the  reversion.  There  is  also  a 
seisin  in  law  when  a  person  not  actually  in  possession  is 
deemed  to  be  seised  of  the  estate,  as  in  the  case  of  an  heir 
who  has  not  entered  into  possession  of  land  acquired  by 
descent.  On  account  of  the  various  meanings  attached  to 
the  word  "  seisin,"  a  covenant  of  tliis  kind  is  not  always 
given  the  same  construction.  In  England,  a  covenant  for 
seisin  is  a  covenant  for  the  title,  and  imports  that  the 
grantor  is  seised  of  the  title. ^  This  rule  also  prevails  in 
most  of , the  States.^ 

sometimes,  indeed,  between  different  parts  of  the  same  State;  but  it 
may,  perhaps,  in  general  be  said  that  what  are  here  often  called  '  full 
covenants'  are  the  covenants  for  seisin,  for  right  to  convey,  against  en- 
cumbrances, for  quiet  enjoyment,  sometimes  for  further  assurance,  and, 
almost  always,  of  warranty— this  last  often  taking  the  place  of  the  cov- 
enant for  quiet  enjoyment"  :  Kuwie  on  Covenants  (4th  ed,),  24,  27. 

'  Bouv.  Law  Diet.  tit.  Covenant. 

'  Cooke  V.  Fowns,  1  Keb.  95 ;  Gray  v.  Briscoe,  Noy,  142  j  Young  v.  Rain- 
cock,  7  Com.  B.  310;  Howell  v.  Richards,  11  East,  641;  Rawle  on  Cove- 
nants, 56. 

•^  Richardson  v.  Dorr,  5  Vt.  21;  Catlin  v.  Hurlburt,  3  Vt.  407;  Mills  v. 
Catlin,  22  Vt.  106 ;  Lockwood?;.  Hturdevant,  6  Conn.  385  ;  Parker  v.  T.rown, 
15  N.  H.  186,  overruling  Willard  v.  Twitchell,  1  ^< .  H.  178 ;  Breck  v.  Young, 


§  886  COVENANTS.  1226 

§  880.  Different  rule. — But  in  otlier  States,  as  in 
Massachusetts,  Maine,  and,  to  a  certain  extent,  in  Ohio 
and  Illinois,  a  different  rule  prevails.  In  those  States  a 
covenant  of  good  and  sufficient  seisin   does  not  require 

11  N.  H.  491 ;  Pringle  v.  Witten,  1  Bay,  256;  1  Am.  Dec.  612;  Kincaid  v. 
Brittain,  5  Sneed,  119;  Pollard  v.  Dwight,  4  Cranch,  430;  McOarty  v. 
Leggett,  3  Hill,  134;  Greenby  v.  Wilcocks,  2  Johns.  1;  3  Am.  Dec.  379; 
Brandt  v.  Foster,  5  Clarke,  287 ;  Mott  v.  Palmer,  1  Comst.  564 ;  Morris  v. 
Phelpa,  5  Johns.  49;  4  Am.  Dec.  323;  Abbott  v.  Allen,  14  Johns.  248; 
Fitch  V.  Baldwin,  17  Johns.  161;  Fitzhugh  v.  Oroghan,  2  Marsh.  J.  J. 
430;  19  Am.  Dec.  140;  Coit  v.  McReynolds,  2  Rob.  (N.  Y.)  655;  Hast- 
ings V.  Webber,  2  Vt.  407;  Martin  v.  Baker,  5  Blackf.  232;  Thomas  v. 
Perry,  1  Peters  0.  0.  57;  Woods  v.  North,  6  Humph.  309;  44  Am.  Dec. 
312;  Clapp  v.  Herdman,  25  111.  App.  509 ;  Resser  v.  Carney,  52  Minn.  397 ; 
54  N.  W.  Rep.  89;  Trice  v.  Kayton,  84  Va.  217;  10  Am.  St.  Rep.  836;  4 
S.  E.  Rep.  377;  Zent  v.  Picken,  54  Iowa,  535;  6  N.  W.  Rep.  750;  Moore 
V.  Johnston,  87  Ala.  220.  See  Lindsey  v.  Veasy,  62  Ala.  421;  Matteson 
V.  Vaughn,  38  Mich.  373.  In  Parker  v.  Brown,  15  N.  H.  186,  Parker,  0.  J., 
who  delivered  the  opinion  of  the  court,  said :  ''Parties  not  conversant 
with  the  law  ordinarily  understand  this  covenant  as  an  assurance  of  a 
title,  and  we  are  of  the  opinion  that  they  have  a  right  so  to  understand 
it.  A  party  who  has  disseised  another  may  be  treated  as  seised  of  the 
fee  at  the  election  of  his  disseisee.  He  cannot  be  permitted  to  qualify 
his  own  wrong ;  but  this  is  for  the  sake  of  the  remedy.  A  party  who 
remains  in  the  adverse,  peaceable  possession  of  lands  for  twenty  years, 
as  owner,  may  thereby  have  evidence  of  a  seisin  in  fee  during  that  time. 
But  this  is  for  a  quieting  of  possession  and  barring  State  claims.  It  does 
not  show  that,  before  the  lapse  of  the  period  prescribed,  he  had  a  lawful 
seisin  in  fee;  on  the  contrary,  he  was,  until  the  expiration  of  the  period, 
a  wrongdoer." 

In  Catlin  v.  Hurlburt,  3  Vt.  407,  Hutchinson,  C.  J.,  in  delivering  the 
opinion  of  the  court,  said,  with  reference  to  a  covenant  that  the  grantors 
were  seised  of  the  land  in  fee  simple,  and  had  in  themselves  good  right 
to  bargain  and  sell  the  same  in  the  manner  mentioned  in  the  deed : 
"  These  expressions,  and  those  of  similar  import,  have  always  been  con- 
sidered in  this  State  as  amounting  to  a  covenant  of  title.  They  have 
been  inserted  that  they  should  be  so  considered.  It  is  argued,  however, 
that  this  means  nothing  more  than  that  the  grantors  were  in  possession, 
claiming  to  hold  in  fee  simple.  This  alteration  might  as  well  be  incor- 
porated by  construction  in  all  the  covenants  that  decidedly  relate  to  title 
in  the  whole  deed.  That  they  were  well  seised  in  fee  simple  means  that 
they  were  actually  in  possession,  claiming  to  hold  in  fee  simple.  That 
they  had  good  right  to  sell  and  convey,  means  that  they  claim  to  have 
such  right.  That  the  premises  are  free  from  all  encumbrances,  means 
that  they  claim  that  they  are  thus  free.  This  is  not  the  most  natural 
and  obvious  meaning  of  the  usual  expressions  in  deeds  of  warranty. 
They  say  nothing  about  claiming.  They  speak  of  realities.  Fee  simple 
denotes  a  permanent  estate." 


1227  COVENANTS.  §  887 

that  the  grantor  shall  have  a  perfect  title,  but  it  is  suffi- 
cient if  he  have  an  actual  seisin  under  a  color  of  title,  no 
matter  how  tortious  his  possession  may  be/  These  latter 
decisions  are  probably  based  upon  the  ground  that  a 
covenant  for  seisin  is  simply  an  assurance  that  the 
grantor  had  such  possession  as  would  render  his  convey- 
ance unaffected  by  the  champerty  acts;  that  is,  his  deed 
was  not  that  of  a  disseisee.  "  It  is  probable  that  the  cove- 
nant for  seisin  was  anciently  introduced  into  deeds  to 
guard  against  such  an  adverse  possession  as  would  render 
the  deed  void,  as  would  have  been  the  case  at  common 
law,  and  is  now  the  case  by  virtue  of  our  statute,  if  there 
be  adverse  possession." ' 

§  887.     Covenant  of  seisin  of  indefeasible  estate. — As 

we  have  seen,  a  covenant  that  the  grantor  is  seised  merely 
without  further  qualification,  may  in  some  States  mean 
that  he  has  only  the  actual  possession.  Yet  everywhere 
the  rule  prevails  that  when  the  covenant  is  that  the 
grantor  is  seised  of  an  indefeasible  estate,  the  covenant  is 
one  of  title,  and  can  be  satisfied  only  by  the  posses- 
sion on  the  part  of  the  vendor  of  an  indefeasible  title 

•  Marston  v.  Hobbs,  2  Mass.  439;  3  Am.  Dec.  61;  Cornell  v.  Jackson, 
3  Cush.  509;  Chapel  v.  Bull,  17  Mass.  219;  FoUett  v.  Grant,  5  Allen,  175; 
Wait  V.  Maxwell,  5  Pick.  217;  16  Am.  Dec.  391;  Raymond  v.  Raymond, 
10 Cush.  134;  Griffin  v.  Fairbrother,  1  Fairf.  59;  Wheelers.  Hatcli,  3 
Fairf.  389;  Baxter  v.  Bradbury,  20  Me.  260;  37  Am.  Dec.  49;  Boothby 
V.  Hathaway,  20  Me.  255;  Cushman  v.  Blanchard,  2  Greenl.  268;  11 
Am.  Dec.  76;  Wilson  v.  Widenham,  51  Me.  567;  Ballard  v.  Ciiild,  34 
Me.  355;  Backus  v.  McCoy,  3  Ohio,  211;  17  Am.  Dec.  585;  Watts  v. 
Parker,  27  111.  224,  229;  Kirkendall  v.  Mitchell,  3  McLean,  145;  Twam- 
bley  V.  Henley,  4  Mass.  439;  Bearce  v.  Jackson,  4  Mass.  408;  Scott  v. 
Twiss,  4  Neb.  133;  Montgomery  v.  Reed,  69  Me.  510.  In  Marston  «. 
Hobbs,  supra,  the  court  say:  "The  defendant,  to  maintain  the  issue  on 
his  part,  was  obliged  to  prove  his  seisin  when  the  deed  was  executed. 
But  it  was  not  necessary  to  show  seisin  under  an  indelea.sil>Io  title.  A 
seisin  in  fact  was  sufficient  whether  he  gained  it  by  his  own  disseisin,  or 
whether  he  was  in  under  a  disseisin.  If  at  the  time  ho  executed  liia 
deed  he  had  the  exclusrve  possession  of  the  premises,  claiming  the  same 
in  fee  simple,  by  a  title  adverse  to  the  owner,  he  was  seised  in  fee  and 
had  a  right  to  convey." 

»  Catlin  V.  Hurlburt,  3  Vt.  407,  per  Hutchinson,  C.  J.     And  see  Trip- 
lett  V.  Gill,  7  Marsh.  J.  J.  436;  Pierce  v.  Johnson,  4  Vt.  253. 


§  SSS  COVENANTS.  1228 

to  the  land  conveyed.'  Of  this  covenant,  Mr.  Washburn 
says  that  the  effect  of  this  covenant  in  this  country, 
"wlien  expressly  made,  is  uniformly  held  to  extend 
further  than  that  of  the  ordinary  covenant  of  seisin,  and 
to  cover  an  existing  outstanding  title  adverse  to  that  of 
the  o'rantor.  It  is  intended  to  meet  the  case  where  one 
is  in  possession  and  his  grantee  wishes  for  a  remedy,  if 
he  shall  discover  that  a  third  person  has  a  better  title, 
which  for  any  reason  he  does  not  see  fit  to  enforce  by 
eviction,  so  as  to  lay  a  foundation  for  an  action  by  the 
grantee  upon  his  covenant  of  warranty."^ 

§  888.     By  what  the  covenant  of  seisin  is  broken. — A 

covenant  of  seisin  is  broken  if  there  is  no  such  laud  in 
existence  as  that  described  in  the  deed  or  purporting  to 
have  been  conveyed.^  Wliere  a  spring  had  been  previ- 
ously conveyed,  it  was  held,  on  the  ground  that  the  spring 
was  a  part  of  the  land  conveyed^the  covenant  of  seisin  in 
the  deed  had  been  broken.*  So  it  is  broken  where  there 
is  a  paramount  right  in  another  to  prevent  the  grantee 
from  damming  water  to  a  certain  height,  when  there  is  a 
reservation  of  that  right  to  him  in  his  deed.^  It  is  also 
broken  if  the  grantor  possesses  only  an  estate  tail,^  or  if 
an  estate  for  life  is  outstanding.^  If  the  grantor  has  pre- 
viously sold  any  part  of  the  premises  which  is  a  fixture, 
Buch  as  the  rails  of  a  fence,  buildings,  or  other  structures, 
so  that  the  right  to  remove  them  is  vested  in  another  at 
the   time  of  his   conveyance,  his  covenant  of  seisin   is 

1  Raymond  v.  Raymond,  lOCush.  134;  Collier  w.  Gamble,  lOMo.  472; 
Smith  j;.  Strong,  14  Pick.  132;  Garfield  v.  Williams,  2Vt.  328;  Prescott 
V.  Trueman,  4  Mass.  631;  3  Am.  Dec.  246;  Pierce  v.  Johnson,  4  Vt.  253; 
Abbott  V.  Allen,  14  Johns.  252;  Bender  v.  Fromberger,  4  Dall.  436,  439. 

*  3  Wash.  Real  Prop.  (4th  ed.)  456. 

'  Bacon  v.  Lincoln,  4  Oush.  212 ;  50  Am.  Dec.  765 ;  Basford  v.  Pearson, 
9  Allen,  389;  85  Am.  Dec.  764;  Wheelock  v.  Thayer,  16  Pick.  68. 

*  Clark  V.  Conroe,  38  Vt.  471. 

*  Walker  v.  Wilson,  13  Wis.  522;  Traster  v.  Snelson,  29  Ind.  96;  Hall 
V.  Gale,  14  Wis.  55. 

®  Comstock  V.  Comstock,  23  Conn.  352. 

'  Wilder  v.  Ireland,  8  Jones  (N.  C),  90;  Mills  v.  Oatlin,  22  Vt.  106. 


1229  COVENANTS.  §§  889, 890 

broken.^  The  use  by  a  railway  company  of  a  parcel  of 
land  as  a  right  of  way  is  not  of  itself  a  breach.  It  must 
also  appear  that  the  company  had  a  valid  right  to  such 
use  of  the  land.''  If  the  grantor  covenants  that  he  is  seised 
of  an  undivided  portion  of  certain  land,  his  covenant  is 
broken  if  the  fact  be  that  a  partition  had  been  made."'' 
So,  where  there  are  two  tenants,  and  one  of  them  attempts 
to  convey  the  entire  estate,  the  covenant  is  broken  as  to 
one-half  of  the  estate.'*  It  is  broken  hj  the  existence  of  a 
prior  deed  conveying  to  a  railroad  company  and  its  assigns 
a  strip  of  land  along  the  line  of  its  road  for  the  purposes 
of  the  company,  where  a  deed  is  subsequently  executed 
conveying  a  parcel  of  land  including  such  strip,  notwith- 
standing the  fact  that  at  the  time  of  the  execution  of  the 
second  deed,  the  strip  of  land  is  occupied  for  the  purposes 
of  a  railroad.* 

§  889.     Broken  at  once  if  grantor  has  no  possession. 

Unless  there  is  some  statutory  regulation  to  the  contrary, 
the  rule  is  that  a  covenant  of  seisin,  where  the  grantor 
has  no  possession,  either  actual  or  constructive,  is  broken 
as  soon  as  made.  If  he  has  no  possession,  either  by  him- 
self or  by  another,  nothing  is  conveyed  by  his  deed  where 
champerty  acts  prevail.* 

§  890.  By  what  the  covenant  is  not  broken. — This 
covenant  is  not  broken  by  the  existence  of  a  highway 
over  a  portion  of  the  land,'  nor  is  it  broken  by  the 
existence  of   a  railroad  across  the  land,  but  a  covenant 

1  West  V.  Stewart,  7  Barr.  122;  Powers  v.  Dennison,  30  Vt.  752;  Van 
Wagner  v.  Van  Nostrand,  19  Iowa,  427.  See  Burke  v.  Nicliols,  2  Keyea, 
671;  Abbott  v.  Kowan,  33  Ark.  593;  Benton  County  v.  Kutherford,  33 
Ark.  640. 

"  Jerald  v.  Elly,  51  Iowa,  321. 

•  Morrison  v.  McArthur,  43  Me.  507. 

*  Downer  v.  Smith,  38  Vt.  464. 

'  Mcsser  v.  Oestreich,  52  Wis.  684. 

"  See  Reasoner  v.  Edinondson,  5  Ind.  393;  Fowler  v.  Poling,  2  Barb. 
S03;  Cushraan  v.  Blanchard,  2  Me.  269;  11  Am.  Dec.  76;  Wilson  v.  Coch- 
ran, 46  Pa.  St.  231 ;  3  Wash.  Real  Prop.  (4th  ed.)  457. 

'  Wliitbeck  V.  Cook,  15  Johns.  483;  8  Am.  Dec.  272;  Vaughn  v.  Stu- 
zaker,  16  Ind.  340. 


§  890  COVENANTS.  1230 

against  encumbrances  would  be/  A  judgment,  mortgage, 
or  a  right  of  dower  does  not  operate  as  a  breach  of  the 
covenant  of  seisin.^  All  of  these  do  not  affect  the  techni- 
cal seisin  of  the  grantee.  He  has  the  title  by  virtue  of 
his  deed,  and  although  these  may  be  encumbrances  from 
which  he  may  be  protected  by  his  covenant  against  en- 
cumbrances, yet  they  do  not  affect  his  possession  of  the 
land  or  his  legal  title  thereto.  Thus,  a  mortgage  is  a 
charge  upon  the  land,  but  until  the  mortgagee  enters,  the 
covenant  of  seisin  is  not  broken.^  Where  a  deed  conveys 
land,  excepting  ''eighty  acres  more  or  less  heretofore 
conveyed,"  to  another,  such  clause  is  descriptive  merely. 
It  is  not  of  the  essence  of  the  contract;  hence,  if  the  por- 
tion previously  conveyed  exceeds  the  quantity  mentioned 
in  the  deed,  the  covenant  of  seisin  by  the  grantor  is  not 
broken.*  Wliere  a  purchaser  from  a  sheriff,  under  a 
judgment  of  foreclosure,  conveyed  with  a  covenant  of 
seisin,  a  subsequent  order  of  the  court  vacating  the  sale 
and  opening  the  judgment  did  not,  it  was  held,  operate 
as  a  breach  of  the  covenant.*  Where  one  is  in  possession 
of  land  under  a  patent,  and  sells  it  with  a  covenant  of 
seisin,  the  fact  that  such  patent  is  voidable,  and  hence, 
his  title  to  the  premises  defeasible,  does  not  render  him 
liable  on  the  covenant.® 

'  Kellogg  V.  Malin,  50  Mo.  496;  11  Am.  Eep.  426. 

»  Fitzhugh  V.  Croghan,  2  Marsh.  J.  J.  430;  19  Am.  Dec.  139;  Sedgwick 
V.  Hollenbeck,  7  Johns.  376;  Stanard  v.  Eldridge,  16  Johns.  254;  Tuiteu. 
Miller,  10  Ohio,  383;  Massey  v.  Craine,  1  McCord,  489;  Lewis  v.  Lewis, 
5  Rich.  12 ;  Reasoner  v.  Edmondaon,  5  Ind.  394.  See  Zent  v.  Picken,  54 
Iowa,  535. 

^  Reasoner  v.  Edmondson,  5  Ind.  394.  Where  one  of  the  parties  was 
a  minor,  it  was  held  that  inasmuch  as  the  title  had  passed  to  the  grantee, 
there  could  be  no  breach  of  the  covenant  until  the  minor  attained  ma- 
jority and  disaffirmed,  or  in  some  legal  manner  avoided  the  conveyance : 
Van  Nostrand  v.  Wright,  Lalor's  Supp.  to  Hill  &  Denio  (N.  Y.),  260. 

*  McArthur  v.  Morris,  84  N.  C.  405. 

'  Coit  V.  McReynolds,  2  Rob.  (N.  Y.)  658.  "  Suppose  a  man  conveys 
his  property  to  an  innocent  party  in  fraud  of  his  creditors,  and  the  court 
should  set  aside  the  deed  (if  a  court  could  be  found  to  do  such  a  thing), 
would  an  action  lie  by  the  grantee  for  a  breach  of  the  covenant  of  seisin? 
I  think  not." 

«  Pollard  V.  Dwight,  4  Cranch,  430,  432. 


1231  COVENANTS.  §§  891-893 

§  891.  Seisin  of  grantee.  —  Nor  can  advantage  be 
taken  of  this  cov^enant,  when  the  grantee  is  himself  seised 
of  the  premises.  "  It  can  never  be  permitted  to  a  person 
to  accept  a  deed  with  covenants  of  seisin,  and  then  turn 
round  upon  his  grantor  and  allege  that  his  covenant  is 
broken,  for,  that  at  the  time  he  accepted  the  deed,  he 
himself  was  seised  of  the  premises."  *  A  subsequent 
written  contract  from  a  former  owner  to  convey  the  legal 
estate  to  some  one  else  than  the  grantee,  is  not  a  breach.^ 
And  this  covenant  is  not  broken  by  the  existence  of  an 
easement.^ 

§  892.  Burden  of  proof. — When  an  action  is  brought 
by  a  grantee  against  the  grantor  for  a  breach  of  the  cov- 
enant of  seisin,  the  defendant  has  the  burden  of  proof  to 
show  that  the  title  he  has  transferred  is  good  and  valid. 
This  rule  is  founded  on  the  reason  that  the  defendant  is 
supposed  to  know  the  state  of  the  title,  and  the  plaintiff 
has  the  negative  until  the  defendant  shows  affirmatively 
title  on  his  part.  It  would  follow  from  this  rule  that  in 
the  absence  of  evidence  on  either  side,  the  plaintiff  would 
be  entitled  to  recover.* 

§  893.  Covenant  for  rig-lit  to  convey. — In  most  cases 
a  covenant  for  a  right  to  convey  is  the  equivalent  of  a 
covenant  of  seisin.  But  there  are  cases  where  this  cove- 
nant must  take  the  place  of  the  latter.  Wherever  a  con- 
veyance is  made  under  a  power,  manifestly  the  trustee  or 
donee  cannot  execute  a  covenant  of  seisin,  but  he  can  give 
a  covenant  of  equal  value  by  inserting  in  his  conveyance 
a  covenant  for  good  right  to  convey.     Then,  again,  in 

'  Fitch  V.  Baldwin,  17  Johns.  161. 

»  Seckler  v.  Fox,  51  Mich.  92.  Evidence  is  inadmissihle  to  show,  in 
Bupport  of  such  a  contract,  that  it  was  executed  in  comphance  with  a 
prior  oral  agreement  with  the  grantor  to  provide  for  Buch  person  in  this 
mode:  Seckler  v.  Fox,  51  IMich.  92. 

»  Blondeau  v.  Sheridan,  81  Mo.  545. 

*  Ahhottv.  Allen,  14  Jol)n8.25o;  ratter  t-.  Kitchen,  5  Bosw.  566;  Baker 
V.  Hunt,  40  111.  266;  89  Am.  Dec.  346;  Swafford  v.  Wiiipple,  3  Greene,  O. 
261.264;  54  Am.  Dec.  498;  Schofield  »•.  Iowa  Co.,  32  Iowa,  321 ;  Beckman 
V.  Ilenn,  17  Wis.  412;  Mechlem  v.  Blake.  16  Wis.  102;  82  Am.  Dec.  707. 


§  89-4  COVENANTS.  1232 

those  States  where  a  covenant  of  seisin  is  satisfied  by  an 
actual  possession,  no  matter  how  tortious  it  may  be,  with- 
out reference  to  the  title  or  right  to  possession,  it  is  natural 
that  a  purchaser  should  seek  to  protect  himself  by  this 
covenant.  Where  the  covenant  of  seisin  is  considered  as 
warranting  the  title,  as  is  the  case  in  England  and  most 
of  the  States,  the  rules  and  limitations  applicable  to  a 
covenant  o£  seisin  also  apply  to  the  covenant  for  right  to 
convey,  which,  for  practical  purposes,  may  be  considered 
its  equivalent.' 

§  894.  Damages  for  breach  of  covenants  of  seisin  and 
good  rigbt  to  convey. — The  measure  of  damages  for  a 
breach  of  these  covenants,  where  the  conveyance  passes 
nothing  to  the  grantee,  is  the  consideration  paid  by  the 
grantee,  and  interest  on  such  sum.^     It  has   frequently 

'  See  Sugden  on  Vendors  (13th  ed.)  462;  Dart  on  Vendors  (4th  ed.), 
499;  Rawle  on  Covenants  (4th  ed.),  87;  Chapman  v.  Holmes,  5  Halst. 
20;  Bickford  v.  Page,  2  Mass.  455;  Dunnica  v.  Sharp,  7  Mo.  71;  WiUson 
V.  Willson,  5  Fost.  (N.  H.)  234;  57  Am.  Dec.  320. 

=•  Smith  V.  Strong,  14  Pick.  12S;  Bickford  v.  Page,  2  Mass.  455;  Ela  v 
Card,  2  N.  H.  175;  9  Am.  Dec.  46;  Morse  v.  Shattuck,  4  N.  H.  229;  17 
Am.  Dec.  419 ;  Greenby  v.  Wilcocks,  2  Johns.  1 ;  3  Am.  Dec.  379 ;  Farmers' 
Bank  v.  Cien,  08  N.  C.  35;  St.  Louis  v.  Bissell,  46  Mo.  157;  Kimball  v. 
Bryant,  25  Minn.  496;  Sumner  t).  Williams,  8  Mass.  162;  5  Am.  Dec.  83; 
Stubbs  V.  Page,  2  Greenl.  378;  Mitchel  v.  Hasen,  4  Conn.  495;  10  Am. 
Dec.  169;  Foster  v.  Shannon,  41  N.  H.  373;  Phipps  v.  Tarpley,  31  Miss. 
433;  Hodges  v.  Thayer,  110  Mass.  286;  Overhauser  v.  McCallister,  10 
Ind.  41 ;  Leland  v.  Stone,  10  Mass.  459;  Marston  v.  Hobbs,  2  Mass.  433; 
3  Am.  Dec.  61;  Caswell  v.  Wendwell,  4  Mass.  108;  Wilson  v.  Forbes,  2 
Dev.  30;  Nutting  v.  Herbert,  35  N.  H.  120;  Willson  v.  Willson,  25  N.  H. 
229 ;  57  Am.  Dec.  320 ;  Sterling  v.  Peet,  14  Conn.  245 ;  Tapley  v.  Lebaume, 
1  Mo.  550;  Campbell  v.  Johnston,  4  Dana,  182;  Cox  v.  Strode,  2  Bibb. 
277;  5  Am.  Dec.  603;  Foster  v.  Thompson,  41  N.  H.  373;  Martin  v.  Long, 
3  ]\Io.  391 ;  Lawless  v.  Collier,  la  Mo.  480;  Blake  v.  Burnham,  29  Vt.  437 ; 
Recohs  V.  Younglove,  8  Baxt.  385 ;  Backus  v.  McCoy,  3  Ohio,  211;  17  Am. 
Dec.  585;  Clark  v.  Parr,  14  Ohio,  118;  45  Am.  Dec.  529;  Nichols  v.  Walter 
8  Mass.  243;  Hacker  v.  Blake,  17  Ind.  97;  Frazier  v.  Supervisors,  74  111. 
291;  Blossom  v.  Knox,  3  Finn.  262;  Blackwell  v.  Justices,  2  Blackf.  143; 
Logan  V.  Moulder,  1  Ark.  313 ;  33  Am.  Dec.  338 ;  Lacy  v.  Marnan,  37  Ind. 
168;  Kincaid  v.  Brittain,  5  Sneed,  109;  Kingsbury  v.  Milner,  69  Ala.  502; 
Hacker  v.  Storer,  8  Me.  228 ;  Hacker  v.  Blake,  17  Ind.  97 ;  Bonta  v.  Miller, 
1  Litt.  250;  Sheets  v.  Andrews,  2  Blackf.  274;  Kimball  v.  Brj'ant,  25 
Minn.  496;  Cummins  v.  Kennedy,  3  Litt.  118;  14  Am.  Dec.  45;  Moore 


1233  COVENANTS.  §    894 

been  contended  that  the  vendee  should  he  entitled  to  re- 
cover the  value  of  the  laud  at  the  time  he  is  deprived  of 
it;  in  other  words,  that  he  should  he  reimbursed  for  the 
loss  he  has  actually  sustained.  But  the  rule  is  [.-"ettled  as 
stated  above.  Chief  Justice  Tilghman,  in  a  case  where 
it  was  urged  that  actual  loss  should  be  the  criterion  by 
wdiich  to  measure  the  damages,  said:  "The  rule  contended 
for  by  the  plaintiff's  counsel,  in  its  utmost  latitude,  ap- 
plied to  covenants  like  the  present,  would,  in  many  in- 
stances, produce  excessive  mischief.  Indeed,  the  counsel 
have,  in  some  measure,  given  up  this  rule  by  confessing 
that  when  buildings  of  magnificence  are  erected  to  gratify 
the  luxury  of  the  wealthy,  it  would  be  unreasonable  to 
give  damages  to  the  extent  of  the  loss;  but  the  ruinous 
consequences  would  not  be  less  to  many  persons  who  have 
sold  lands  on  which  no  other  than  useful  buildings  have 
been  erected.  The  rise  in  the  value  of  land,  not  only  in 
towns  on  the  sea  coast,  but  in  the  interior  part  of  the 
United  States,  is  such  that  it  can  hardly  be  supposed  that 
any  prudent  man  would  undertake  to  answer  the  incal- 
culable damages  which  might  overwhelm  his  family, 
under  the  construction  contended  for  by  the  plaintiff.  I 
have  taken  pains  to  ascertain  the  opinion  of  lawyers  in 
this  State  prior  to  the  American  revolution,  and  I  think 
myself  warranted  in  asserting,  from  the  information  that 
I  have  received,  that  the  prevailing  opinion  among  the 
most  eminent  counsel  was  that  the  standard  of  damages 
was  the  value  of  the  land  at  the  time  of  making  the  con- 
tract."* To  similar  effect  is  the  language  of  Mr.  Justice 
Livingston,  in  one  of  the  early  New  York  cases:  "To  re- 

V.  Frankenfield,  25  Minn.  540;  Park  v.  Cheek,  4  Cold.  20;  Rlipa  v.  Swain, 
122  Ind.  272;  Home  v.  Walton,  117  111.  130;  Scmple  v.  Whorton,  68 
Wis.  626 ;  32  N.  \V.  Rep.  690;  Dajigett  v.  Keas,  79  Wis.  60;  48  N.  W.  Rep. 
127;  McLennan  v.  Prentice,  85  Wis.  427;  55  N.  W.  Rep.  764;  Rowne  v. 
Wolcott,  1  N.  Dak.  415;  48  N.  W.  Rep.  336;  Mercantile  Trust  Co.  v. 
Soutli  Park  Residence  Co.,  94  Ky.  271 ;  22  8.  W.  Rep.  314.  See  Price 
V.  rx-al,  90  N.  C.  290;  Lanigan  v.  Kille,  13  Phila.  00;  Bloom  v.  Wolfe,  50 
Iowa,  286. 

'  In  Bender  v.  Fromberger,  4  Dall.  442. 
Heeds,  Vol.  II. —78 


§  894  COVENANTS.  1234 

fund  the  consideration,  even  with  interest,  may  be  a  very- 
inadequate  compensation  when  the  property  is  greatly 
enhanced  in  vaUie,  and  when  the  same  money  might 
have  been  laid  out  to  equal  advantage  elsewhere.  Yet  to 
make  this  increased  value  the  criterion,  where  there  has 
been  no  fraud,  may  also  be  attended  with  injustice,  if  not 
ruin.  A  piece  of  land  is  bought  solely  for  the  purpose  of 
agriculture;  by  some  unforeseen  turn  of  fortune,  it  be- 
comes the  site  of  a  populous  city,  after  which  an  eviction 
takes  place.  Every  one  must  perceive  the  injustice  of 
calling  on  a  bona  fide  vendor  to  refund  its  present  value, 
and  that  few  fortunes  could  bear  the  demand.  Who,  for 
the  sake  of  one  hundred  pounds,  would  assume  the  hazard 
of  repaying  as  many  thousands,  to  which  the  value  of 
the  property  might  rise  by  causes  not  foreseen  by  either 
party,  and  which  increase  in  worth  would  confer  no  right 
on  the  grantor  to  demand  a  further  sum  of  the  grantee? 
The  safest  general  rule  in  all  actions  on  contract  is  to 
limit  the  recovery  as  much  as  possible  to  an  indemnity 
for  the  actual  injury  sustained,  without  regard  to  the 
profits  which  the  plaintiff  has  failed  to  make,  unless  it 
shall  clearly  appear  from  the  agreement  that  the  acquisi- 
tion of  certain  profits  depended  on  the  defendant's  punc- 
tual performance,  and  that  he  had  assumed  to  make  good 
such  a  loss  also."^     Where  the  plaintiff  has  had  the  use 

^  In  Staats  v.  Ten  Eyck,  3  Oaines,  111 ;  2  Am.  Dec.  254.  And  see, 
also,  Pitcher  v.  Livingston,  4  Johns.  1;  4  Am.  Dec.  229;  Swafford  v. 
Whipple,  3  Greene,  G.  261,  264 ;  54  Am.  Dec.  498.  In  Pitcher  v.  Living- 
ston, 4  Johns.  1,  17,  Chief  Justice  Kent  said:  "The  case  before  us  then 
resolves  itself  into  this  question :  What  is  the  extent  of  the  rule  of  dam- 
ages on  a  breach  of  the  covenant  of  seisin?  Three  points  are  submitted 
by  the  case:  (1)  Whether  the  plaintiff  can  recover  interest  on  the  con- 
sideration paid ;  (2)  whether  he  can  recover  for  the  increased  value  of 
the  land ;  and  (3)  whether  he  can  recover  for  his  beneficial  improve- 
ments. The  two  first  points  were  settled  in  the  case  of  Staats  v.  Ten 
Eyck,  and  need  not  be  again  examined.  Nothing  lias  been  shown  which 
affects  the  accuracy  of  that  decision  on  those  points,  and  it  deserves 
notice  as  being  of  great  weight  in  supjjort  of  that  decision,  that  in  the 
States  of  Massachusetts  and  Pennsylvania,  the  same  rule  of  damages  is 
established  in  an  action  for  a  breach  of  the  covenant  of  seisin.  The 
third  i)oint  was  reserved  in  the  consideration  of  the  former  case,  and  no 


123-5  COVENANTS.  §  894 

of  the  premises,  no  interest  can  be  recovered  for  the  time 
elapsing    before    eviction,  unless  he    has  been  forced   to 

opinion  expressed  upon  it.  It,  therefore,  remains  open  for  discussion. 
I  must  own  that  I  never  perceived  any  ground  for  a  distinction  as  to 
the  damages  between  the  rise  in  the  value  of  the  land  and  the  improve- 
ments. There  is  no  reason  for  such  a  distinction  deducible  from  the 
nature  of  the  covenant  of  seisin.  Improvements  made  upon  the  land 
were  never  the  subject  matter  of  the  contract  of  sale  any  more  than  its 
gradual  increase  or  diminution  in  value.  The  subject  of  the  contract 
was  tbe  land  as  it  existed  and  was  worth  when  the  contract  was  made. 
The  purchaser  may  have  made  the  purchase  under  the  expectation  of  a 
great  rise  in  the  value  of  the  land,  or  of  great  improvements  to  be  made 
by  the  application  of  his  wealth  or  his  labor.  But  such  expectations 
must  have  been  confined  to  one  party  only,  and  not  have  entered  as  an 
ingredient  into  the  bargain.  It  was  the  land,  and  its  price  at  the  time 
of  the  sale,  which  the  parties  had  in  view,  and  to  that  subject  the  opera- 
tion of  the  contract  ought  to  be  confined.  The  argument  in  favor  of  the 
value  of  the  land  and  the  improvements  as  they  exist  at  the  time  of 
eviction,  has  generally  excepted  cases  of  extraordinary  increase  and  of  very 
expensive  improvements.  It  seems  to  have  been  admitted,  that  with- 
out such  a  limitation  to  the  doctrine,  it  could  not  be  endured.  But  this 
destroys  everything  like  a  fixed  rule  on  the  subject,  and  places  the  ques- 
tion of  damages  in  a  most  inconvenient  and  dangerous  uncertainty. 
We  have  a  striking  illustration  of  this  in  the  French  law.  The  rule  in 
France  upon  bona  fide  sales,  according  to  Pothier,  Traite  du  Contrat  de 
Vente  (No.  132-141),  is  to  make  the  seller,  on  eviction  of  the  buyer,  re- 
fund not  only  the  original  price,  but  the  increased  value  of  the  land, 
and  the  expense  of  the  meliorations  made.  He  admits,  however,  that 
the  intention  of  the  parties  is  to  be  the  rule  in  the  assessment  of  dam- 
ages, and  that,  in  the  case  of  an  immense  augmentation  in  the  price  of 
the  land,  or  in  the  value  of  the  improvements,  the  seller  is  to  answer 
only  for  the  moderate  damages  which  the  parties  could  be  supposed  to 
have  anticipated  when  the  contract  was  made.  It  is  plainly  to  be  per- 
ceived that  there  is  no  certainty  in  such  a  loose  application  of  the  lule, 
and  that  it  leaves  the  damages  to  an  arbitrary  and  undefined  ciiscretion, 
and  so  it  appears  to  have  been  understood;  for  in  the  'Institution  au 
Droit  Francois,'  by  M.  Argou  (liv.  3,  c.  23),  it  is  laid  down  that  '  the 
question  of  damages,  beyond  the  price  paid,  is  with  them  very  arbitrary.^ 
This  is  not  consonant  to  the  genius  of  our  law,  nor  does  it  recommend 
itself  well  for  our  adoption.  On  a  suVjject  of  sucli  general  concern,  and 
of  such  momentous  interest,  as  tlie  usual  covenants  in  a  conveyance  of 
land,  the  standard  for  the  computation  of  damages,  upon  a  failure  of 
title  (whatever  that  standard  may  be),  ought,  at  least,  to  be  certain  and 
notorious.  The  seller  and  the  purchaser  are  equally  interested  in  hav- 
ing the  rule  fixed.  I  agree  that  the  contract  is  to  be  conytrued  accord- 
ing to  the  intention  of  the  parties;  but  I  consider  that  the  intention  of 
the  covenant  of  seisin,  as  uniformly  expounded  in  the  English  law,  is 
only  to  indemnify  the  grantee  for  the  consideration  paid.    This  was  the 


§  895  COVENANTS.  123G 

pay  mesne  profits  to  the  holder  of  the  paramount  title.' 
Where  the  possession  of  the  grantee  has  never  been  dis- 
turbed, only  nominal  damages  can  be  recovered  for  a 
mere  technical  breach.^ 

§  895.  Proof  of  real  consideration. — In  this  country 
the  clause  stating  the  consideration  is  not  conclusive.  A 
different  rule  seems  to  prevail  in  England.  Mr.  Mayne 
says:  "Where  the  damages  are  calculated  upon  the  basis 
of  the  purchase  money,  its  amount,  if  stated  in  the  deed 
of  conveyance,  cannot  be  contradicted  by  parol  evidence. 
Where  any  consideration  is  mentioned,  if  it  is  not  said  also 
'and  for  other  considerations,'  you  cannot  enter  into  any 
proof  of  any  other;  the  reason  is,  it  would  be  contrary  to 
the  deed;  for  when  the  deed  says  it  is  in  consideration  of 
a  particular  thing,  that  imports  the  whole  consideration, 
and  is  negative  to  any  other." ^  But  in  the  United  States 
the  rule  is  that  the  consideration  clause  is  not  conclusive, 
and  that  evidence  is  admissible  to  show  the  true  consid- 
eration.*    It  follows  from   this  rule  that  either  party  can 

settled  rule  at  common  law,  upon  the  ancient  warranty,  of  which  this 
covenant  of  seisin  is  one  of  the  substitutes ;  and  all  the  reasons  of  policy 
which  prevent  the  extension  of  the  covenant  to  the  increased  value  of 
the  land  apply  equally,  if  not  more  strongly,  to  prevent  its  extension  to 
improvements  made  by  the  purchaser.  A  seller  may  be  presumed,  at 
all  times,  able  to  return  the  consideration  which  he  actually  received ; 
but  to  compel  him  to  pay  for  extensive  improvements,  of  the  extent  of 
which  he  could  have  made  no  calculation,  and  for  which  he  received  no 
consideration,  may  suddenly  overwhelm  him  and  his  family  in  irretriev- 
able ruin."  See,  also,  Morris  v.  Matthews,  3  Strob.  199;  Nelson  v. 
Matthews,  2  Hen.  &  M.  164;  3  Am.  Dec.  620;  Blessing  v.  Beatty,  1  Rob. 
(Va.)  287 ;  Bond  v.  Quattlebaum,  1  McCord,  584;  10  Am.  Dec.  702. 

1  Hutchins  v.  Roundtree,  77  Mo.  500.  And  see  Stebbins  r.  Wolf,  33 
Kan.  765. 

*  Boon  V.  McHenry,  55  Iowa,  202. 

*  Mayne  on  Damages  (2d  ed.),  148. 

*  Guinotte  v.  Chouteau,  34  Mo.  154;  Hodges  v.  Thayer,  110  Mass. 
286;  Martin  v.  Gordon,  24  Ga.  533;  Gavin  v.  Bucklers,  41  Ind.  528; 
Goodspeed  v.  Fuller,  46  Me.  141;  71  Am.  Dec.  572;  Bullard  v.  Briggs,  7 
Pick.  533;  19  Am.  Dec.  292;  Watson  v.  Blaine,  12  Serg.  &  R.  131;  14 
Am.  Dec.  669;  Gulleyi;.  Grubbs,  1  Marsh.  J.  J.  388;  Wade  v.  Merwin, 
11  Pick.  280;  Duval  v.  Bibb,  4  Hen.  &  M.  113;  4  Am.  Dec.  506;  Olapp 
V.  Tirrell,  20  Pick.  247 ;  Higdon  v.  Thomas,  1  Har.  &  G.  139 ;  Hayden  v. 


1237  COVENANTS.  §  895 

prove  what  was  in  fact  the  real  consideration,  when  the 
amount  stated  in  the  deed  is  not  the  true  one.  The  de- 
fendant may  show  that  the  consideration  was  less  than 
that  expressed  in  the  conveyance  for  the  purpose  of 
diminishing  tlie  amount  of  damages.^  So.  on  the  other 
liand,  for  the  purpose  of  augmenting  the  damages,  the 
plaintiff  may  show  that  the  real  consideration  was  larger.^ 
It  is  permissible  to  show  that  the  consideration  was  prop- 
erty. In  such  a  case,  the  damages  will  be  measured  by 
the  value  of  the  property  at  the  time  of  the  execution  of 
the  conveyance,  with  interest.^  But,  of  course,  it  is  com- 
petent for  the  parties  to  agree  upon  the  value  of  the  prop- 
erty as  the  whole  or  a  part  of  the  consideration.  Wken 
such  agreement  is  made,  the  value  so  determined  will  be 
the  amount  to  be  recovered,  rather  than  the  value  which, 
at  the  trial,  the  property  might  be  jjroven  to  have.* 

Mentzer,  10  Serg.  &  R.  329;  McCrea  v.  Punnort,  16  Wend.  460;  30  Am. 
Dec.  103;  Wolfe  v.  Hauver,  1  Gill,  84;  Straw  bridge  v.  Cartledge,  7  Watts. 
&  y.  399;  Park  v.  Clieek,  2  Head.  451;  Monahan  v.  Col.iiin,  4  Watts,  436; 
Dexter  v.  Manley,  4  Oush.  26 ;  Jack  v.  Dougherty,  3  Watts,  151 ;  Bur- 
bank  V.  Gould,  15  Me.  118;  Bingham  v.  Weiderwax,  1  Comst.  509;  Bol- 
ton V.  Johns,  5  Barr.  145;  47  Am.  Dec.  404;  Meeker  v.  Meeker,  16  Conn. 
383;  Harvey  v.  Alexander,  1  Rand.  219;  10  Am.  Dec.  619;  Jones  v. 
Ward,  10  Yerg.  160;  Curry  t;.  Lyles,  2  Hill  (S.  0.).  404;  Garrett  v.  Stuart, 
1  McCord,  514;  Wilson  v.  Shelton,  9  Leigh,  343;  Hartley  y.  McAnulty,  4 
Yeates,  95;  2  Am.  Dec.  396;  Engleman  r.  Craig,  2  Busli,  424;  Morse  v. 
Shattuck,  4  N.  H.  229;  17  Am.  Dec.  419;  Barnes  v.  Learned,  5  N.  H.  264; 
Nutting  V.  Herbert,  35  N.  H.  120 ;  Belden  v.  Seymour,  8  Conn,  304 ;  21  Am. 
Dec.  661;  Henderson  v.  Henderson,  13  Mo.  151;  Bircher  i;.  Watkins,  13 
Mo.  521 ;  Hallam  v.  Todhunter,  24  Iowa,  166 ;  Harlow  v.  Thomas,  15  Pick. 
66;  Gushing  v.  Rice,  46  Me.  303;  71  Am.  Dec.  579;  Moore  v.  McKie,  5 
Smedes  &  M.  238;  Williamson  v.  Test.  24  Iowa,  138;  Byrnes  v.  Rich,  5 
Gray,  518. 

1  Harlow  v.  Thomas,  15  Pick.  70;  Morse  v.  Shattuck.  4  N.  H.  229;  17 
Am.  Dec.  419;  Williamson  v.  Test,  24  Iowa,  139;  Bingham  v.  Weider- 
wax, 1  Comst.  514;  INIoore  v.  McKie,  5  Smedes  &  M.  238;  Swafford  v. 
Whipi)le,  3  Greene,  267;  54  Am.  Dec.  498;  Cox  v.  Henry,  8  Casey,  19; 
Martin  v.  Gordon,  24  Ga.  535. 

^  Dexter  v.  iManley,  4  Cush.  26;  Belden  v.  Seymour,  8  Conn.  304;  21 
Am.  Dec.  661 ;  Guinotte  v.  Chouteau,  34  Mo.  154. 

*  Hodges  V.  Thayer,  110  Mass.  286;  Lacey  v.  Marnan,  37  Ind.  168; 
Bonnon's  Estate  v.  Urton,  3  Greene,  228. 

*  Williamson  v.  Test,  24  Iowa,  138. 


§§  S9C),  897  COVENANTS.  1238 

§  80G.  Mitig-ation  of  damag-es.  —  In  mitigation  of 
damages,  the  defendant  may  show  that  a  certain  parcel 
was  included  in  the  deed  by  mistake,  and  that  he  re- 
ceived no  part  of  the  consideration  price  for  it.^  "What- 
ever evidence,"  said  the  court,  in  one  of  these  cases^ 
"therefore,  tended  to  show  the  consideration  actually  paid 
for  the  premises  before  granted  to  Merrill,  or  to  show 
that  no  consideration  was  paid  for  them,  for  the  reason 
that  it  was  known  and  understood  by  the  parties  that 
they  were  not  to  pass  by  the  conveyance,  was  competent 
and  admissible  on  the  question  of  damages,  although  in- 
admissible upon  the  issue  raised  by  the  plea  of  omnia, 
performavit.  If  the  jury  or  an  auditor  should  find  that 
nothing  was  paid  for  the  Merrill  place,  although  it  is 
clearly  included  within  the  deed,  but  that  both  parties 
knew  and  understood  it  to  have  been  previously  sold,  and 
that,  in  fact,  it  was  included  in  the  deed  by  mistake,  or 
through  inadvertence,  the  plaintiff  would  be  entitled  to 
nominal  damages  only."  ^ 

§  897.     Knowledg-e  of   grantor's  want  of  title. — The 

right  of  recovery  for  a  breach  of  a  covenant  of  seisin,  is 
not  affected  by  the  fact  that  it  was  known  to  one  or  both. 

^  Leland  v.  Stone,  10  Mass.  459;  Earnest;.  Learned,  5  N.  H.  264;  Nut- 
ting V.  Herbert,  35  N.  H.  121;  s.  c.  37  N.  H.  346;  Stewart  v.  Hadley,  55 
Mo.  235. 

*  Nutting  V.  Herbert,  35  N.  H.  127,  per  Fowler  J.  In  Burke  v.  Bever- 
idge,  15  Minn.  208,  the  court,  in  speaking  of  a  breach  of  the  covenants  of 
seisin  and  good  right  to  convey,  and  the  effect  of  the  covenantor  se- 
curing the  paramount  title  wliich,  by  virtue  of  another  covenant  in  the 
deed,  passed  to  the  covenantee,  said  :  "  Though  by  the  breach  of  the  cove- 
nants in  question,  as  thereby  the  title  wholly  fails,  the  law  restores  to 
the  plaintiff  the  consideration  paid,  with  interest,  yet,  if  by  virlue  of 
another  covenant  in  the  same  deed,  also  intended  to  secure  to  her  the 
subject  matter  of  the  conveyance,  she  has  obtained  that  seisin,  it  would  be 
altogether  inequitable  that  she  should  have  that  seisin,  and  also  the  con- 
sideration paid  for  it ;  that  is  to  say,  that  if  there  exist  facts  which 
would  render  inequitable  the  application  of  the  rule  that  such  covenants, 
if  broken  at  all,  are  broken  as  soon  as  made,  and  the  purchaser's  right 
of  action  to  recover  back  the  consideration  is  then  perfect,  such  facts  are 
to  be  taken  into  consideration  by  the  jury,  not  as  a  bar  to  the  action, 
but  in  mitigation  of  damages." 


1239  COVENANTS.  §  898 

of  the  parties,  at  the  time  the  eovenant  was  made,  that  the 
grantor  had  no  title  to  the  land  or  any  part  of  it/ 
Bailey,  P.  J.,  in  the  case  cited,  quoted  with  approval  the 
language  of  the  supreme  court  of  that  State  in  a  former 
case:^  "Where  a  person  insists  upon  and  obtains  cove- 
nants for  title,  he  has  the  right,  when  obtained,  to  rely 
upon  them  and  enforce  their  performance,  or  recover 
damages  for  their  breach.  Tlie  vendor  is  under  no  com- 
pulsion to  make  covenants  when  he  sells  land,  but,  hav- 
ing done  so,  he  must  keep  them  or  respond  in  damages 
for  injury  sustained  by  their  breach.  Nor  is  it  a  release 
or  discharge  of  the  covenant  to  say  that  both  parties 
knew  it  was  not  true,  or  that  it  would  not  be  performed 
when  it  was  made.  A  person  may  warrant  an  article  to 
be  sound  when  both  buyer  and  seller  know  that  it  is  un- 
sound; so  the  seller  may  warrant  the  quantity  or  quality 
of  an  article  he  sells  when  both  parties  know  that  it  is  not 
of  the  quality  or  does  not  contain  the  quantity  warranted. 
In  fact  the  reason  the  purchaser  insists  upon  covenants 
for  title,  or  a  warranty  of  quality  or  quantity,  is  because 
he  either  knows  or  fears  that  the  title  is  not  good,  or  that 
the  article  lacks  in  quantity  or  quality," 

§  898.     "Value   of  land   as  measure   of  damagres. — As 

has  been  pointed  out,  the  measure  of  damages  in  most 
cases  is  the  consideration  paid  with  interest.  But  there 
may  be  cases  where  to  apply  such  a  rule  would  be  to  deny 
to  the  covenantee  all  relief.  No  consideration  whatever 
may  be  mentioned  in  the  deed,  and  it  may  be  impossible 
to  learn  the  true  consideration.  The  consideration  may 
have  been  paid  by  a  third  person  at  whose  request  the 
covenants  in  the  deed  may  have  been  inserted.  In  cases 
of  this  character,  the  circumstances  of  each  particular 
case  must  control  the  rule  as  to  damages,  and,  generally, 
the  value  of  the  land  at  the  time  the  conveyance  is  made, 
with  interest,  will  form  the  basis  of  damages.'     An  agree- 

1  Wadhams  r.  Innes,  4  Bradw.  (111.  App.)  642,  646. 

«  Beach  v.  Miller,  51  III.  211  ;  2  Am.  Kep.  Ii90. 

»  Smith  V.  Strong,  14  Tick.  128;  Byriied  v.  Kich,  5  Gray,  518;  Hodges 


§  898  COVENANTS.  1240 

ment  was  made  between  a  debtor  and  a  creditor,  whereby 
the  hitter  agreed  to  receive  a  certain  lot  of  land,  in  full 
satisfaction  of  the  debt.  The  former  agreed  with  another 
for  the  purchase  of  the  land,  and  requested  him  to  make 
the  deed  directly  to  the  creditor  with  warranty.  This 
was  done,  the  deed  expressing  a  large  nominal  considera_ 
tion.  It  was  delivered  by  the  debtor  to  the  creditor  in 
satisfaction  of  the  debt.  In  a  suit  upon  the  covenant, 
Mr.  Chief  Justice  Shaw  said:  "Then  what  was  the  actual 
consideration  as  between  the  plaintiff  and  defendant? 
It  is  very  clear  that  the  consideration  expressed  in  the 
deed  is  no  criterion;  the  actual  consideration  may  be 
always  inquired  into  by  evidence  aliunde.  Nor  is  it 
the  sum  agreed  to  be  paid  to  the  defendant  by  Leighton 
[the  debtor];  to  that  the  plaintiff  was  a  stranger.  Nor  is 
it  the  nominal  amount  of  the  note  which  the  plaintiff 
agreed  to  surrender  and  release  to  Leighton,  as  the  con- 
sideration to  be  by  him  paid  for  the  land.  That  may 
have  been  a  security  of  little  value;  no  evidence  of  its 
value  was  given;  and,  besides,  to  that  part  of  the  trans- 
action the  defendant  was  a  stranger.  It  seems,  therefore, 
to  be  a  case  to  which  the  ordinary  general  rule  cannot 
apply,  and  which  must  be  determined  according  to  its 
particular  circumstances  upon  the  general  principles  ap- 
plicable to  breaches  of  contract;  the  party  shall  recover 
a  sum  in  damages  which  will  be  a  compensation  for  his 

loss If  the  failure  of   the    title   extended    to  the 

whole  of  the  land,  then  the  entire  value  of  the  land  is  to 
be  the  measure;  if  to  a  part  only,  and  the  plaintiff  does 
not  tender  a  reconveyance  of  the  part  upon  which  the 
conveyance  operated  to  give  title  to  the  grantee,  then  the 
value  of  the  part,  the  title  to  which  failed,  with  interest, 
will  be  taken  as  the  measure  of  damages."*  When  dam- 
ages have  been  recovered  for  a  total  breach  of  these  cove- 
nants, such  fact  is  a  bar  to  any  further  recovery.^     When 

V.  Thayer,  110  Mass.  286.  See  Staples  v.  Dean,  114  Mass.  125;  Mason  v. 
Kellogg,  38  Mich.  132. 

*  In  Byrnes  v.  Rich,  5  Gray,  518. 

'  Eawle  on  Covenants  (4th ed.)  263,  and  note;  Outram  v.  Morwood,  3 


1241  COVENANTS.  §  899 

the  covenantee  has  never  been  in  possession  and  is  unable 
to  obtain  it,  the  action  upon  the  covenant  is,  in  effect,  an 
action  for  money  had  and  received,  on  account  of  failure 
of  consideration.^ 

§  899.  Undisturbed  possession  of  grantee. — If  there 
has  been  no  disturbance  of  the  possession  of  the  grantee 
for  a  sufficient  length  of  time  to  enable  him  to  acquire 
title  by  the  statute  of  limitations,  a  recovery  on  the  cove- 
nant should  be  for  no  more  than  nominal  damages.^  The 
consideration  money  and  interest  are  the  measure  of  dam- 
ages when  the  grantee  acquires  nothing  by  the  convey- 
ance. But  when  he  acquires  anything  by  his  deed,  tliis 
must  be  considered  in  estimating  the  damages.  "  The 
weight  of  American  authority  has  determined  that  the 
covenant  for  seisin  is  broken,  if  broken  at  all,  so  soon  as 
it  is  made,  and  thereby  the  immediate  right  of  action 
accrues  to  him  who  has  received  it.  But  in  such  case,  the 
grantee  is  not  entitled,  as  matter  of  course,  to  recover 
back  the  consideration  money.  The  damages  to  be  re- 
covered are  measured  by  the  actual  loss  at  that  time  sus- 
tained. If  the  purchaser  has  bought  in  the  adverse 
right,  the  measure  of  his  damages  is  the  sum  paid.  If  he 
has  been  actually  deprived  of  the  whole  subject  of  his 
bargain,  or  of  a  part  of  it,  they  are  measured  by  the 
whole  consideration  money  in  the  one  case,  and  a  corres- 
ponding part  of  it  in  the  other."^     But  the  mere  fact  that 

East,  346;  Nosier  v.  Hunt,  18  Iowa,  212;  Duchess  of  Kingston'rf  case,  2 
Smith's  Leading  Oases  (7th  ed.),  778;  Markliam  v.  Middleton,  2  8trob. 
1259;  Donnell  v.  Thompson,  10  Me.  174;  25  Am.  Dec.  216.  And  see 
Parker  v.  Brown,  15  N.  H.  176;  Kincaid  v.  Brittain,  5  Sneed,  119;  I'urter 
V.  Hill,  9  Mass.  34;  6  Am.  Dec.  22. 

1  Baker  v.  Harris,  9  Ad.  &  E.  532. 

»  Som'^rville  v.  Hamilton,  4  Wheat.  230;  Wilson  v.  Forbes,  2  Dev.  30: 
Pate  V.  Mitchell,  23  Ark.  591  ;  79  Am.  Dec.  114;  (iarlield  v.  Williams.  2 
Vt.  328 ;  Cowan  v.  Silliman,  4  Dev.  47.  See  llencke  v.  Johnson,  02  Iowa, 
555. 

»  Lawless  v.  Collier,  19  Mo.  480.  In  Hartford  and  Salisbury  Ore  Co. 
V.  Miller,  41  Conn.  112,  the  court  says:  "But  if  the  party  takes  anythin,:^ 
by  his  deed,  directly  or  indirectly,  by  its  own  force,  or  by  its  co-opera- 
tion with  other  instruments  or  other  circumstances,  whether  it  be  the 


§  000  COVENANTS.  1242 

the  covenantee  is  in  the  undisturbed  possession  of  the 
premises,  where  liis  possession  has  not  ripened  into  title, 
is  no  defense.^ 

§  900.  Partial  breach. — Where  the  covenant  is  for  a 
fee  simple,  and  the  estate  is  subject  to  a  life  estate,  recov- 
ery may  be  had  for  the  value  of  the  less  estate.^  If,  after 
these  covenants,  are  broken,  and  before  the  covenantee 
commences  action,  the  paramount  title  is  acquired  by 
the  covenantor,  which,  by  the  operation  of  other  cov- 
enants, is  transferred  to  the  covenantee,  the  damages  may 
be  mitigated  or  reduced  to  a  nominal  amount  by  this 
fact.^  If  the  estate  which  the  grantor  had  and  by  deed 
transferred  was  a  copyhold,  and  he  had  covenanted  for  a 
seisin  in  fee,  there  is  a  breach  of  the  covenant,  and  the 
difference  in  value  between  a  fee  simple  and  a  copyhold 
estate  is  the  measure  of  damages/  When  there  has  been 
a  partial  breach  by  a  failure  of  title  to  part  of  the  land 

entire  thing  purchased  or  a  part  of  it,  its  value  must  be  considered  in 
considering  the  damages."  See  Tanner  v.  Livingston,  12  Wend.  83; 
Kimball  v.  Bryant,  25  Minn.  496;  Terry  v.  Drabenstadt,  68  Pa.  St.  400; 
Gutliriet).  Pugsley,  12  Johns.  126;  Mills  v.  Oatlin,  22  Vt.  98;  Oockrell 
V.  Proctor,  65  Mo.  41 ;  Lockwood  v.  Sturtevant,  6  Conn.  373. 

^  Akerly  v.  Vilas,  21  Wis.  109.  But  in  Missouri,  it  is  held,  where  the 
covenant  is  considered  as  running  with  the  land,  that  if  the  covenantee 
has  not  been  compelled  to  yield  possession  to  a  paramount  title,  he  can 
only  recover  nominal  damages.  He  is  not  permitted  to  give  up  posses- 
sion and  seek  substantial  damages :  Cockrell  v.  Proctor,  65  Mo.  41.  And 
Bee  Hencke  v.  Johnson,  62  Iowa,  555. 

'  Guthrie  v.  Pugsley,  12  Johns.  126 ;  Recohs  v.  Younglove,  8  Baxt.  385 ; 
Tanner  v.  Livingston,  12  Wend.  83.  See  Rickert  v.  Snyder,  10  Wend. 
416;  Blanchard  v.  Blanchard,  48  Me.  174.  Life  tables  may  be  used  for 
the  purpose  of  computing  the  value  of  the  life  estate:  Mills  v.  Catlin,  22 
Vt.  98;  Donaldson  v.  Mississippi  etc.  Ry.  Co.,  18  Iowa,  280;  87  Am.  Dec. 
391. 

*  Kimball  v.  Bryant,  25  Minn.  496,  500;  Baxter  v.  Bradbury,  20  Me. 
260;  37  Am.  Dec.  49 ;  Burke  v.  Beveridge,  15  Minn.  205 ;  Noonan  v.  Isley, 
21  Wis.  138 ;  Knowles  v.  Kennedy,  82  I'a.  St.  445 ;  McCarty  v.  Leggett, 
3  Hill,  134;  King  v.  Gilson,  32  111.  348;  83  Am.  Dec.  269.  See  Tucker  v. 
Clark,  2  Sand.  Ch.  96;  Boulter  t;.  Hamilton,  15  Up.  Can.  C.  P.  125; 
Blanchard  v.  Ellis,  1  Gray,  195;  61  Am.  Dec.  417;  Mclnnis  v.  Lyman, 
61  Wis.  191. 

*  Gray  v.  Briscoe,  Noy,  142.  See  Wace  v.  Brickerton,  3  De  Gex  &  S. 
751. 


1243  COVENANTS.  §  900 

conveyed,  either  party  is  entitled  to  sliow,  for  the  purpose 
of  determining  the  damages,  the  value  which  that  part,  to 
which  title  has  failed,  relatively  bears  to  the  whole.'  "The 
law  will  apportion  the  damages  to  the  measure  of  value 
between  the  land  lost  and  the  land  preserved."^  In  a 
case  in  Massachusetts,  it  was  contended  that  the  proper 
method  of  determining  damages  was  by  ascertaining  the 
proportion  in  quantity  which  the  part,  to  which  there 
had  been  a  failure  of  title,  had  to  the  remainder.  But 
the  court  replied:  "This  is  not  a  just  rule,  for  the  value 
may  be  unequal.  The  true  and  just  rule  is,  that  the  pro- 
portional value,  and  not  the  quantity  of  the  several  parts 
of  the  land,  should  be  the  measure  of  damages."^  The 
grantors  had  the  fee  in  two-sixths  of  an  estate  and  a  life 
estate  in  the  remaining  four-sixths.  Upon  a  breach  of 
the  covenant,  it  was  held  that  to  measure  the  damages, 
the  value  of  the  life  estate  should  be  deducted  from  four- 
sixths  of  the  purchase  price,  and  that  as  there  was  no  one 
to  call  upon  the  grantee  for  the  mesne  profits,  no  interest 
should  be  allowed.*  If  a  constructive  eviction  is  founded 
on  the  existence  of  a  tax  deed  which  a  third  person  held 
at  the  time  of  the  execution  of  the  deed,  the  grantor  may 

^  Morris  v.  Phelps,  5  Johns.  49,  56;  4  Am.  Dec.  323.  See  Wallace  v. 
Talbot,  1  McCord,  467 ;  Griffin  v.  Reynolds,  17  How.  611 ;  Dickens  v.  Shep- 
perd,  3  Murph.  526;  Cornell  v.  Jackson,  3  Cush.  506,  510. 

"^  Morris  v.  Phelps,  supra.  See,  als^o,  Blanchard  v.  Hoxie,  34  Me.  376; 
Blanchard  v.  Blanchard,  48  Me.  177;  Morrison  v.  McArthur,  43  Me.  567; 
Bryan  v.  Smalhvood,  4  Har.  &  McH.  483;  Hubbard  v.  Norton,  10  Conn. 
435;  Rickert  v.  Snyder,  9  Wend.  416;  McNear  v.  McCoraber,  18  lova,  14; 
Nyce  V.  Obenz,  17* Ohio  St.  76;  Pliillips  v.  Reichert,  17  Ind.  120;  79  Am. 
Dec.  463;  Hoot  v.  Spade,  20  Ind.  326. 

*  Cornell  v.  Jackson,  3  Cush.  506,  510. 

*  Guthrie  v.  Pugeley,  12  Johns.  126.  "  There  is  no  settled  rule  of  law," 
said  the  court,  "  to  ascertain  the  damages  in  such  a  case,  without  having 
a  jury  to  assess  them,  as  they  must  depend  principally  upon  the  value  of 
the  estate  during  the  lives  of  the  defendants,  which  must  be  deducted 
from  four-sixths  of  the  consideration  money.  Nor  ought  interest  to  be 
allowed  during  their  lives,  for  no  one,  during  that  time,  will  have  a  right 
to  turn  the  plaintiff  out  of  possession,  or  call  on  him  for  the  mesne 
profits."  See,  also,  Downer  v.  Smith,  38  Vt.  464;  Tonet'.  Wilson,  81  111. 
52^^;  Ela  v.  Card,  2  N.  H.  175;  9  Am.  Dec.  46;  Scantlin  v.  Allison,  12 
Kan.  851. 


§  901  COVENANTS.  1244 

contest  the  validity  of  the  tax  deed  in  an  action  for  a 
breach  of  the  covenant.  The  right  of  the  grantor  to  con- 
test the  validity  of  tlie  tax  deed  is  not  affected  by  the  fact 
that  the  statute  of  limitations  has  since  run  in  favor  of 
the  tax  deed.  The  rights  of  the  respective  parties  are  to 
be  determined  by  the  conditions  as  they  existed  at  the 
time  at  which  the  conveyance  was  executed.^ 

§  OOl.  Treating-  partial  failure  as  entire. — Where 
there  is  an  entire  failure  there  can  be  a  total  recovery, 
and  where  there  has  been  a  partial  failure  there  can  be  a 
partial  recovery.  But  can  a  party  treat  a  partial  failure 
as  entire  and  recover  the  entire  purchase  money,  or  must 

^  Mclnnis  v.  Lyman,  62  Wis.  191.  When  title  fails  as  to  a  part  of  the 
land  conveyed,  damages  should  be  awarded  in  such  proportion  to  the 
whole  consideration  as  the  part  bears  to  Ihe  whole  tract:  Beaupland  v. 
McKeen,  28  Pa.  St.  124;  70  Am.  Dec.  115;  Messer  v.  Ostreich,  52  Wis. 
684;  Remple  v.  Whorton,  68  Wis.  626;  32  N.  W.  Rep.  690;  Larson  v. 
Cooii,  85  Wis.  564;  55  N.  W.  Rep.  703;  McLennan  v.  Prentice,  85  Wis. 
427;  55  N.  W.  Rep.  764;  Hunt  v.  Raplee,  44  Hun,  149;  Furniss  v.  Fergu- 
son, 15  N.  Y.  437;  Hymes  v.  Esty,  133  N.  Y.  342;  31  N.  E.  Rep.  105; 
Guthrie  v.  Pugsley,  12  Johns.  126;  Staats  v.  Ten  Eyck,  3  Caines,  111;  2 
Am.  Dec.  254;  Morris  v,  Phelps,  5  Johns.  49;  4  Am.  Dec.  323;  Tone  v. 
Wilson,  81  111.  529;  Major  v.  Dunnavant,  25  111.  262;  Wadhams  v.  Innes, 
4  111.  App.  642;  Weber  v.  Anderson,  73  111.  439;  Clapp  v.  Herdman,  25 
111.  App.  509;  Threkeld  v.  Fitzhugh,  2  Leigh,  451;  Clarke  v.  Hardgrove, 
7  Gratt.  399 ;  Conrad  v.  Effinger,  87  Va.  59 ;  24  Am.  St.  Rep.  646 ;  12  S.  E. 
Rep.  2;  Click  v.  Green,  77  Va.  827;  Ela  v.  Card,  2  N.  H.  175;  9  Am. 
Dec.  46 ;  Winnipiseogee  Paper  Co.  v.  Eaton,  65  N.  H.  13 ;  18  Atl.  Rep. 
171;  Parker  v.  Brown,  15  N.  H.  176;  Partridge  v.  Hatch,  18  N.  H.  494; 
Blanchard  v.  Blanchard,  48  Me.  174;  Blanchard  v.H.oxie,  34  Me.  376; 
Koestenbader  v.  Peirce,  41  Iowa,  204 ;  Hoot  v.  Spade,  20  Ind.  326 ;  McDunn 
V.  Des  Moines,  39  Iowa,  286;  Mische  v.  Baughn,  52  Iowa,  528;  Long  v. 
Sinclair,  40  Mich.  569;  Scheible  v.  Slagle,  89  Ind.  'd2S;  Wright  v.  Nipple,  92 
Ind.  310;  Price  v.  Deal,  90  N.  C.  290;  Saunders  v.  Flaniken,  77  Tex.  662; 
14  S.  W.  Rep.  236;  White  v.  HoUey,  3  Tex.  Civ.  App.  590;  24  S.  W.  Rep. 
831 ;  Gass  v.  Sanger  [Tex.  Civ.  App.],  30  S.  W.  Rep.  502;  Weeks  v.  Barton 
[Tex.  Civ.  App.],  31  S.  W.  Rep.  1071;  Keesey  r.  Old,  82  Tex.  22;  17  S.  W. 
Rep.  928;   Stark  t;.  Olney,  3  Or.  88;  Crawford  v.  Crawford,  1  Bailey,  128; 

19  Am.  Dec.  660;  Lewis  v.  Lewis,  5  Rich.  12;  Wallace  v.  Talbot,  1  Mc- 
Cord,  466;  Jeter  t;.  Glenn,  9  Rich.  374;  Aiken  v.  McDonald,  43  S.  C.  29; 

20  S.  E.  Rep.  796;  Hunt  v.  Nolen  (S.  C),  24  S.  E.  Rep.  310;  Nyce  v. 
Obertz,  17  Ohio,  71;  Moses  v.  Wallace,  7  Lea,  413;  Whitzman  /;.  Hirsh, 
87Tenn.  513;  Metie  v.  Dow,  9  Lea,  93;  Downer  v.  Smith,  38  Vt.  464; 
Butcher  v.  Peterson,  26  W.  Va.  447 ;  53  Am.  Rep.  89. 


I 


1245  COVENANTS.  §§  902, 903 

be  retain  whatever  title  was  acquired,  permitting  him  to 
recover  only  the  difference  in  value  between  that  title 
and  the  entire  estate?  The  question  arose  in  Tennessee, 
where  a  deed  containing  covenants  of  seisin  and  warranty 
purported  to  convey  an  absolute  estate  to  the  entire  land 
in  fee,  but  in  fact  it  conveyed  only  a  life  estate.  The 
court  held  that  the  measure  of  damages  was  the  difference 
between  the  value  of  the  life  estate  and  the  fee,  and  that 
as  to  the  life  estate  the  conveyance  remained  in  force/ 
To  the  argument  that  a  purchaser  ought  not  to  be  com- 
pelled to  accept  a  title  to  a  part  or  an  estate  for  life,  when 
the  inducement  to  the  purchase  was  the  entire  estate,  the 
court  said  the  reply  was  that  these  "would  be  important 
considerations  upon  an  application  to  a  court  of  equity  for 
a  decision,  but  if  the  purchaser  choose  to  sue  upon  the 
covenant  at  law  without  a  rescission  or  offer  to  rescind,  he 
can  only  recover  to  the  extent  of  the  breach,  the  contract 
of  sale  and  conveyance  remaining  in  force  as  to  the  part 
to  which  the  title  does  not  fail."  ^ 

§  902.  Burden  of  proof  on  partial  breach. — Where 
a  covenantee  sues  a  remote  grantor  for  failure  of  title  to 
a  portion  of  the  land  which  the  covenantee  had  purchased 
from  an  intermediate  grantor,  he  can  recover,  of  course, 
a  proportionate  share  of  the  consideration  received  for 
the  deed.  But  as  to  the  relative  value  of  the  portion 
purchased  by  the  covenantee  bringing  suit,  he  has  the 
burden  of  proof.  He  is  the  one  seeking  relief,  and  he 
must  establish  all  the  facts  showing  that  he  is  entitled  to 
relief,  and  to  what  extent  it  should  be  given.' 

§  903.  Power  to  purchase  title. — The  fact  that  the 
purchaser  might  have  removed  the  defect  or  bought  in 
the  outstanding  title,  can  have  no  effect  upon  his  claim 
for  damages  for  a  breach  of  the  covenants.  "  It  is  true," 
said  the  court  in  one  case,  "  the  grantee,  while  the  prior 

*  Kecohs  V.  Younglove,  8  F.axt.  385. 
'  Recohs  V.  Younglove,  supra. 
»  Mische  v.  Baughn,  52  Iowa,  528. 


§  903  COVENANTS.  1246 

mortgage  remained  only  an  encumbrance,  miglit  have 
discharged  it  if  he  had  possessed  the  pecuniary  ability, 
and  thus  sa\»cd  himself  from  eviction,  but  then  so  might 
the  grantor;  the  grantee,  whether  able  or  willing  or  not, 
was  in  no  way  bound  to  do  it,  and  had  a  right  to  expect 
that  the  grantor  would  do  it,  while  he,  the  grantor,  was 
bound  to  do  it,  bound  by  the  obligations  of  his  express 
covenant."^       Lands    of  which    the    grantors    supposed 

^  Lloyd  V.  Quimby,  5  Ohio  St.  265;  Miller  v.  Halsey,  2  Green,  48; 
Stewart  v.  Drake,  4  Halst.  143;  Ohapel  v.  Bull,  17  Mass.  221;  Elder  v. 
True,  32  Me.  104;  Burk  v.  Clements,  16  Ind.  132;  Norton  v.  Babcock,  2 
Met.  510.  In  the  last  cited  case  the  grantor  had  obtained  the  premises 
under  a  judgment,  leaving  an  equity  of  redemption  in  the  judgment 
debtor.  This  equity  of  redemption  was  levied  upon  by  another  judg- 
ment creditor  and  purchased.  The  purchaser  notified  the  grantee  of  his 
intention  to  redeem,  and  the  latter  paid  him  a  sum  of  money  for  the  pur. 
pose  of  prevention,  the  amount  for  which  the  equity  had  been  purchased 
and  interest  both  being  $602.89.  The  deed  contained  the  usual  cove- 
nants of  seisin,  warranty,  and  against  encumbrances.  In  a  suit  upon 
these  covenants,  Chief  Justice  Shaw  said:  "  It  appears  by  the  statement 
of  facts  reported  as  found  by  the  jury  that  more  than  a  month  before  the 
expiration  of  the  right  of  redeeming  the  estate  le\jded  upon  by  the  de- 
fendant, and  by  him  conveyed  to  the  plaintiff  with  covenants  of  war- 
ranty, Edward  A.  Phelps,  the  holder  of  this  right  to  redeem,  gave  notice 
to  the  plaintiff  of  his  intention  to  redeem ;  whereupon  the  plaintiff  in 
good  faith,  and  in  order  to  discharge  that  right  to  redeem  and  enable 
himself  to  retain  the  estate,  paid  $602.89,  in  order  to  extinguish  such  en- 
cumbrance. The  value  of  the  estate  at  that  time,  as  found  by  the  jury, 
was  $1,200;  for  the  one  moiety  which  was  the  subject  of  the  levy,  and 
the  estate  to  be  redeemed,  and  the  value  of  the  improvements  made  upon 
it,  $500.  It  is  contended  for  the  plaintiff  that  the  amount  thus  paid  by 
him  to  extinguish  the  encumbrance  is  the  measure  of  his  damage ;  but 
we  think  that  this  cannot  be  laid  down  as  a  rule  of  damages  without 
considerable  qualification.  Where  the  encumbrance  is  of  such  a  char- 
acter that  if  not  extinguished  it  would  take  the  whole  estate,  and  it  can 
be  extinguished  for  the  value  of  the  estate,  so  that  the  amount  paid  for 
its  extinguishment  would  bring  a  less  onerous  burden  upon  the  cove- 
nantor than  he  would  have  to  sustain  by  an  eviction,  it  being  for  his  bene- 
fit as  well  as  that  of  the  owner  to  extinguish  it,  the  amount  paid  for 
extinguishing  would  be  the  measure  of  damages,  because  it  would  afford 
the  plaintiff  perfect  indemnity.  Otherwise,  the  amount  thus  paid  ex- 
ceeds the  amount  which  the  covenantor  would  have  been  bound  to  pay 
if  the  plaintiff  had  been  evicted.  For  instance,  we  will  suppose  the  case 
of  a  conveyance  with  the  usual  covenants  against  encumbrances  and  cov- 
enants of  warranty.  There  is  an  outstanding  mortgage,  and  the  mort- 
gagee is  about  to  foreclose  and  oust  the  mortgagor.  He  must  redeem  or 
be  evicted.    If  he  is  evicted,  he  will  have  a  remedy  on  his  covenant,  and 


1247  COVENANTS.  §  903 

themselves  seised  were  sold  with  covenants  of  seisin  and 
warranty,    but    it    appeared  subsequently  that  they    had 

recover  the  value  of  the  land  at  the  time  of  the  eviction  and  interest. 
Now,  if  the  value  of  the  land  be  $2,000,  and  the  amount  of  the  mortgage, 
with  interest,  $2,500,  should  the  grantee  redeem  and  pay  $2,500  to  ex- 
tinguish the  encumbrance,  he  could  not  recover  that  sum  of  his  war- 
rantor, although  the  encumbrance  could  not  be  extinguished  for  less, 
because  the  covenantor  is  liable  only  for  the  value  of  the  land.  But  if 
the  mortgage  should  amount  to  $1,500,  and  the  grantee  should  pay  that 
Bum  to  redeem,  it  would  constitute  the  measure  of  damages,  because  it 
would  afford  an  indemnity  to  the  plaintiff,  and  bring  a  less  charge  on 
the  covenantor  than  if  the  grantee  had  permitted  the  mortgagee  to  fore- 
close." 

The  court  then  referred  to  the  case  of  Wyman  v.  Brigden,  4  Mass.  150, 
where  a  levy  was  rightfully  made  upon  the  estate  as  the  property  of 
another  for  $1,800,  and  the  plaintiff,  who  had  never  been  out  of  actual 
possession,  redeemed  by  paying  $1,800,  the  estate  being  worth  $3,000,  in 
which  it  was  held  that  the  sum  paid  for  the  redemption  should  be  the 
measure  of  damages,  and  continued :  "  We  are  then  to  apply  this  rule 
to  the  present  case,  and  the  result  will  be  that  if  the  sum  of  $602.89, 
paid  by  the  plaintiff  to  extinguish  the  right  of  redemption,  was  less 
than  the  defendant  would  have  been  liable  for  had  the  plaintiff  per- 
mitted Phelps  to  redeem,  then  tliat  is  the  measure  of  damages  for  which 
the  defen  lant  is  now  liable.     If  it  exceeds  that  amount,  then  he  is  liable 

only  for  the    smaller    amount Had  the   plaintiff  declined   the 

off er  to  pay,  what  would  have  been  the  amount  of  damages?  As  the 
estate  granted  by  the  defendant  to  the  plauitiff  actually  passed  by  the 
conveyance,  the  defendant  being  seised,  and  having  good  right  to  con- 
vey, subject  only  to  redemption  by  his  creditor,  the  amount  of  damagea 
he  would  have  been  liable  for  on  his  covenants  was  the  value  of  the 
land  at  the  time  of  the  eviction :  Gore  v.  Brazier,  3  Mass.  543 ;  3  Am. 
Dec.  182.  The  value  of  the  land,  independent  of  the  improvements, 
was  then  $1,200,  and  the  value  of  the  improvements  $500,  making  in 
round  numbers  $1,700.  By  improvements,  we  here  understand  build- 
ings or  betterments,  other  than  repairs  made  by  the  defendant  or  the 
plaintiff  after  the  levy,  and  before  the  expiration  of  the  year  allowed  by 
law  for  the  redemption.  The  great  difficulty  probably  arises  from  the 
fact  of  these  expensive  betterments  made  upon  a  deleasihlo  estate.  We 
are  of  the  opinion  that  if  they  were  made  by  the  creditor  after  the  levy, 
the  debtor  could  not  be  charged  with  them  on  redemption,  for  the  rea- 
Bons  above  stated ;  and  being  annexed  to  the  realty,  and  having  become 
a  part  of  the  freehold,  they  would  have  constituted  a  part  of  the  actual 
value  at  the  time  of  redemption.  Supi-ose  them  made  by  the  plaintiff, 
they  were  made  by  him  after  he  ac<|iiired  a  title  purporting  to  be  abso- 
lute and  indefeasible  under  the  defendant's  deed  of  warranty;  and  we 
are  of  opinion  that,  as  between  the  plaintiff  and  defendant,  the  loHHuiust 
fall  on  the  latter.  It  arises  from  want  of  caution  in  giving  such  a  deed, 
when  in  fact  he  had  only  a  defeasible  estate." 


§  904  COVENANTS.  1248 

no  title.  Tho  grantee  sued  in  the  covenant  of  seisin,  six 
years  afterward,  and  the  original  grantors  purchased  the 
title  of  the  true  owners,  and  tendered  a  new  deed  to  the 
grantee,  but  he  refused  to  accept  it.  They  then  filed  a 
bill  in  equity  to  compel  him  to  receive  the  conveyance 
and  to  stay  his  proceedings  on  the  covenant;  but  it  was 
held  that  the  court  possessed  no  power  to  compel  the 
grantee  to  take  the  deed  or  to  disturb  his  action  on  tho 
covenant.^ 

§  904.  Keeping-  public  street  open. — While  a  party 
may  maintain  an  action  for  damages  for  the  breach  of  a 
covenant,  it  does  not  follow  in  all  instances  that  he  can 
secure  relief  by  enforcing  the  specific  performance  of  a 
covenant  or  agreement.  A  deed  conveyed  a  tract  of  land 
describing  it  by  metes  and  bounds,  and  at  the  close  of  the 
description  of  the  property  added,  "together  with  the 
right  of  way  in,  upon,  and  over  a  street  thirty-five  feet  in 
width,  called  Minna  street,  running  from  Tenth  street 
to  the  southwesterly  line  of  the  lot  of  land  thereb}^  con- 
veyed (to  wit,  said  last-described  parcel  of  land),  said 
street  forever  to  be  and  remain  free  and  open  as  a  public 
street."  After  the  death  of  the  grantor,  the  land,  includ- 
ing the  street,  was  distributed  to  his  heirs,  and  the  gran- 
tee requested  that  the  street  be  kept  open,  and  this  request 
being  refused,  he  brought  an  action  for  specific  perform- 
ance. The  court  held  that  if  the  language  constituted  a 
covenant,  it  was  one  of  seisin,  of  warranty,  or  of  quiet 
enjoyment;  if  it  should  be  regarded  as  a  covenant  of 
seisin,  it  was  broken  as  soon  as  executed,  and  a  claim  for 
the  breach  should  have  been  presented  to  the  adminis- 
tratrix of  the  grantor's  estate,  and  if  considered  as  a  cov- 
enant of  warranty  or  quiet  enjoyment,  the  breach  occurring 

»  Tucker  v.  Clark,  2  Sand.  Ch.  96.  See,  also,  Burton  v.  Reeds,  20  Tnd. 
87;  Noonan  v.  Isley,  21  Wis.  138;  Bingham  v.  Weiderwax,  1  Comst.  513; 
Blanchard  v.  Ellis,  1  Gray,  195;  61  Am.  Dec.  417;  Porter  v.  Hill,  9  Mass. 
36;  6  Am.  Dec.  22;  Kincaid  v.  Brittain,  5  Sneed,  123;  Parker  v.  Brown, 
15  N.  H.  188. 


1249  COVENANTS.  §  905 

after  the  rleath  of  the  covenantor,  the  heirs,  as  they  were 
not  named  in  the  covenant,  were  not  bound.^ 

§  905.  Covenant  ag-ainst  encumbrances. — This  cov- 
enant is  intended  to  protect  tlie  grantee  against  rights  or 
interests  in  third  persons,  whicli,  while  consistent  with 
the  fee  being  in  the  grantor,  yet  diminish  the  value  of  the 
estate.^  As  a  general  rule,  this  covenant  does  not  run 
with  the  land,  because,  if  an  encumbrance  exists,  the  cov- 
enant is  broken  as  soon  as  it  is  made.'  In  South  Carolina, 
however,  it  is  held  that  the  covenant  runs  with  the  land, 
although  it  may  be  broken  at  once  upon  the  making  of 
the  deed.^  And  in  Indiana  the  same  doctrine  obtains.* 
In  Iowa,  although  the  covenant  is  considered  as  in  presenti, 
nevertheless  if  a  second  or  third  grantee  from  the  cov- 
enantee be  compelled  to  remove  the  encumbrance  to  pro- 
tect his  title,  he  may  sue  upon  the  covenant  and  recover 
what  he  has  been  forced  to  pay.^  In  Illinois,  a  remote 
grantee  may  maintain  an  action  against  the  original 
grantor,  if  the  grantee  sustains  the  damage,  although  the 
covenant  is   not  considered  as   running  with  the  land.'' 

^  McDonald  v.  McElroy,  60  Cal.  484.  It  was  also  held  in  this  case 
that  the  grantee  had  no  right  of  way  of  necessity  over  the  grantor's  lands. 

^  Oarey  v.  Daniels,  8  Met.  482;  Prescott  v.  Trueman,  4  Mass.  629; 
3  Am.  Dec.  246;  Chapman  v.  Kimball,  7  Neb.  3!]9. 

*  Blondeau  v.  Sheridan,  81  Mo.  545;  Cathcart  v.  Bowman,  5  Pa.  St. 
317 ;  Clark  v.  Swift,  3  Met.  392.  But  see  Cole  v.  Kimball,  52  Vt.  639 ; 
Boyd  V.  Belmont,  58  How.  Pr.  513. 

*  McGrady  v.  Brisbane,  1  Nott  &  McO.  104. 

*  Martin  v.  Baker,  5  Blackf.  232. 

*  Knadler  v.  Sharp,  36  Iowa,  236. 

'  Ricliard  r.  Bent,  59  111.  43;  14  Am.  Rep.  1.  Justice  Sheldon  said: 
"Where  the  covenant  of  seisin  is  broken,  and  there  is  an  entire  failure 
of  title,  the  breach  is  final  and  complete,  the  covenant  is  broken  once  for 
all ;  actual  damages  and  all  the  damages  that  can  result  from  the  breach 
have  accrued;  the  measure  of  damages  is  the  purchase  money  and  inter- 
est, which  are  at  once  recoverable.  In  such  case  the  riglit  of  action  ia 
euVjstantial,  and  its  transfer  may  well  be  held  to  come  within  the  rule 
prohibiting  the  assignment  of  choses  in  action.  But  as  the  covenant 
against  encumbrances  is  one  of  indemnity,  the  covenantee  can  recover 
only  nominal  damages  for  a  breach  thereof,  unlcsB  he  can  show  that  he 
has  sustained  actual  loss  or  injury  thereby,  or  has  had  to  pay  money  to 
remove  tiie  encumbrance.  And  where  there  is  the  barren  right  of  re- 
Ds.s,Da,  Vol.  II.— 7a 


§  906  COVENANTS.  1250 

111  Nebraska,  this  covenant  is  considered  an  agreement 
that  the  grantor  has  an  unencumbered  title,  and  it  is  not 
viewed  as  having  the  nature  of  a  covenant  of  indemnity/ 

§  906.  Encumbrance  defined.  —  It  is  sometimes  ex- 
tremely difficult  to  determine  wiiether  or  not  a  particular 
right  in  another  is  an  encumbrance,  within  the  meaning 
of  the  covenant  against  encumbrances.  This  difficulty 
arises  from  the  fact  that  the  word  "encumbrance"  does 
not  admit  of  a  general,  and  at  the  same  time  accurate,  defi- 
nition. Besides,  the  circumstances  of  each  particular 
case  must  be  considered.  Take,  for  instance,  the  case  of 
an  outstanding  lease.  It  can  easily  be  imagined  that,  in 
many  cases,  the  fact  that  a  piece  of  property  was  leased 
for  a  number  of  years  would,  were  the  property  sought 
for  an  investment,  add  to  its  value;  while,  if  the  pur- 
chaser desired  the  present  possession  of  the  property,  the 
existence  of  a  lease  might  detract  from  its  market  value. 
The  definition  of  an  encumbrance  that  finds  the  most 
favor  is  thus  given  by  Bouvier:  "Any  right  to,  or  inter- 
est in,  land  which  may  subsist  in  third  persons,  to  the 
diminution  of  the  value  of  the  estate  of  the  tenant,  but 
consistently  with  the  passing  of  the  fee."^  To  this  gen- 
eral rule,  the  modification  has  been  added  that:  "Nothing 
which  constitutes  a  part  of  the  estate,  or  which,  as  be- 
tween the  parties,  is   to  be  regarded  as  an   incident   to 

covery  of  only  nominal  damages,  the  right  of  action  is  one  only  in  name, 
and  is  essentially  no  right  of  action.  It  is  distinguishable  from  an  or- 
dinary chose  in  action.' ' 

1  Chapman  v.  Kimball,  7  Neb.  399.  In  Massachusetts  this  covenant 
was  originally  not  assignable :  Whitney  v.  Dinsmore,  6  Cush.  124 ;  Tufts 
V.  Adams,  8  Pick.  547;  Thayer  v.  Clemence,  22  Pick.  490.  But  this  is 
now  changed  by  statute:  Gen.  Stat.,  c.  89,  §  17.  See  Foote  v-  Burnet, 
10  Ohio,  332 ;  36  Am.  Dec.  90.  For  a  case  holding  that  the  easement  of 
the  public  over  flats  not  built  upon  or  inclosed,  is  not  an  encumbrance 
within  the  meaning  of  the  usual  covenant  against  encumbrances,  see 
Montgomery  v.  Reed,  69  Me.  510. 

'  Bouv.  Law  Diet.,  tit.  Encumbrances;  2  Greenleaf  on  Evidence,  $ 
242.  See  Prescott  v.  Trueman,  4  Mass.  630;  3  Am.  Dec.  246;  Mitchell  v. 
Warner,  5  Conn.  527;  Carter  v.  Denman,  3  Zab.  273. 


1251  COVENANTS.  §  007 

which   the  estate  is  subject,  can   be  deemed  au   encum- 
brance." ^ 

§  907.  What  are  considered  encumbrances. — A  right 
to  cut  and  maintain  a  drain  is  deemed  an  encumbrance;  ^ 
so  is  a  riglit  to  dam  up  the  water  of  a  stream  passing 
through  the  land;  ^  so  is  a  right  to  maintain  an  artificial 
watercourse,*  or  a  right  to  cut  timber  on  the  land  con- 
veyed;^ A  right  of  dower  is  also  an  encumbrance,  and  it 
is  immaterial  whether  it  is  inchoate  or  consummate  by 
the  death  of  the  husband.^  The  covenant  is  broken  by 
the  existence  of  a  paramount  private  right  of  way, ^  or  by 
the  existence  of  taxes,  due  at  the  time  the  conveyance  is 
executed,^  or  which  levied  subsequently  have,  by  opera- 
tion of  law,  relation  back  to  the  date  of  the  deed.®  But, 
of  course,  if  the  taxes  levied  subsequently  become  a  lien 
only  from  the  time  they  are  levied,  or  do  not  relate  so 

1  Dunklee  v.  Wilton  R.  R.  Co.,  4  Fost.  (N.  H.)  489. 

»  Smith  V.  Sprague,  40  Vt.  43. 

'  Morgan  v.  Smith,  11  111.  199 ;  Gin  v.  Hancock,  31  Me.  42.  See  Tsele 
V.  Arlington  Five  Cents  Savings  Bank,  135  Mass.  142;  Gawtry  i;.  Leland, 
31  N.  J.  Eq.  385. 

*  Prescott  V.  White,  21  Pick.  341 ;  32  Am.  Dec.  266. 

'  Sp'irr  V.  Anlrew,  6  Allen,  420;  Cathcart  v.  Bowman,  5  Barr.  319. 

«  Walker  »■.  Deaver,  79  Mo.  664 ;  Shearer  ;•.  Ranger,  22  Pick.  447 ;  Jeter 
V.  Glenn,  9  Rich.  376;  Bigelow  v.  Hubbard,  97  Mass.  195;  Russ  v.  Perry, 
49  N.  H.  549;  Fuller  v.  Wright,  18  Pick.  405.  See  Donnell  v.  Thompson. 
10  Me.  170;  25  Am.  Dec.  216;  Porter  v.  Noyes,  2  Greenl.  26;  11  Am.  Dec. 
30;  Smith  w.  Cannel,  32  Me.  126;  Hatcher  v.  Andrews,  5  Bush,  561; 
Blanchard  v.  Blanchard,  48  Me.  177;  Runnells  v.  Webber,  59  Me.  488; 
Henderson  v.  Henderson,  13  Mo.  152;  McAlpin  v.  Woodruff,  11  Ohio  St. 
120;  Carter  v.  Denman,  3  Zab.  273.  But  see  Powell  v.  Monson  Co., 
3  Mason,  355,  where  Judge  Story  said  that,  in  his  opinion,  the  covenant 
against  encumbrances  was  not  broken  by  an  inchoate  right  of  dower. 
See,  however.  Ward  v.  Ashbrook,  78  Mo.  515. 

'  Russ  V.  Steele,  40  Vt.  310;  Wilson  v.  Cochran,  10  Wright,  233.  But 
Bee  Mc.MuUint;.  Wooley,  2Lans.  394;  Wetberbee  r.  Bennett,  2  Allen,  428. 

*  Fuller  V.  Jillette,  9  Biss.  296;  Ingalls  v.  Cooke,  21  Iowa,  560;  Plow- 
man V.  Williams,  6  Lea  (Tenn.),  268;  Almy  v.  Hunt,  48  111.  45;  MitcbcU 
V.  Pillsbury,  5  Wis.  410.     And  see  Evans  v.  Saunders,  3  Lea  (Tenn.),  734. 

»  Rundell  v.  Lakey,  40  N.  Y.  514:  Hutchins  v.  Moody,  30  Vt.  &56;  34 
Vt.  433;  Long  v.  Moler,  5  Ohio  St.  272;  (Jverstreet  v.  Dobson,  28  Ind. 
256;  Peters  v.  Myers,  22  Wis.  602;  Blossom  v.  Van  Court,  34  Mo.  394; 
86  Am.  Dec.  114. 


§  907  COVENANTS.  1252 

far  back  as  the  time  of  the  execution  of  the  deed,  they 
are  not  encumbrances.^  There  is  no  breach,  however, 
if  a  portion  of  the  land  conveyed  has  been  illegally 
sold  for  taxes.*  The  existence  of  a  mortgage,  a  judgment, 
or  any  debt  which  has  the  effect  of  a  lien  upon  the  land, 
is  an  encumbrance.^  To  make  a  mortgage  an  encum- 
brance, it  is  essential  that  it  should  be  a  lien.  If,  there- 
fore, for  any  cause,  the  mortgage  is  not  a  lien  upon  the 
premises,  its  existence  is  not  a  breach  of  the  covenant.* 
It  is  held  that  taxes  which  are  a  lien,  but  not  payable 
until  afterward,  are  not  an  encumbrance  within  a  cov- 
enant that  there  are  no  encumbrances  suffered  by  the 
grantor.^  This  covenant  is  broken  by  the  existence  of  a 
prior  covenant  to  which  the  land  is  subject,  that  a  particu- 
lar fence  shall  be  erected  or  maintained,^  or  that  no  intox- 
icating liquor  shall  be  sold  on  the  premises.^  Where  a 
daughter  had,  under  the  provisions  of  her  father's  will, 
the  right  of  living  in  a  part  of  a  house,  of  which  the 
whole  was  afterward  conveyed  by  the  residuary  devisee, 
it  was  held  that  this  paramount  right  of  the  daughter  was 
a  breach  of  the  covenant  against  encumbrances  made  by 
such  residuary  devisee.*  A  restriction  against  building, 
unless  it  be  done  in  a  specified  way,  is  also  an  encum- 
brance.^ A  covenant  against  encumbrances  will  extend 
to  an  outstanding  lease."  Conditions  of  such  a  nature 
that  their  nonperformance  may  cause  a  forfeiture  of  the 

^  Jackson  v.  Sassaman,  5  Casey,  109 ;  Tull  v.  Royston,  30  Kan.  617. 

*  Cummings  v.  Holt,  56  Vt.  384. 

*  Norton  v.  Babcock,  2  Met.  510;  Bean  ?'.  Mayo,  5  Greenl.  94;  Shearer 
V.  Ranger,  22  Pick.  447 ;  Jones  v.  Davis,  24  Wis.  229. 

*  Case  V.  Erwin,  18  Mich.  434. 

'  Smith  V.  Eigerman,  5  Ind.  App.  269 ;  51  Am.  St.  Rep.  281.  But  see 
Cochran  v.  Guild,  106  Mass.  29 ;  8  Am.  Rep.  296. 

«  Burbank  v.  Pillsbury,  48  N.  H.  475;  97  Am.  Dec.  633;  Kellogg  v. 
Robinson,  6  Vt.  276 ;  27  Am.  Dec.  550.  But  see  Parish  v.  Whitney,  3 
Gray,  516. 

^  Hatcher  v.  Andrews,  5  Bush,  561. 

*  Jarvis  v.  Buttrick,  1  Met.  480. 

»  Roberts  v.  Levy,  3  Abb.  Pr.,  N.  S.,  311. 
"•  Fritz  V.  Pusey,  31  Minn.  368. 


1253  COVENANTS.  §  908 

estate  are  encumbrances.^  So  are  covenants  which  run 
with  the  land.  Thus,  a  covenant  to  maintain  a  division 
fence  along  the  entire  land  between  the  premises  con- 
veyed and  certain  adjoining  land,  is  an  encumbrance.^ 
An  action  on  the  covenant  does  not  accrue  until  an  ouster 
takes  place,  or  the  grantee  has  been  compelled  to  extin- 
guish the  covenant  to  protect  his  estate.' 

§  908.  Water  rig-hts. — A  right  to  erect  and  maintain 
a  dam  has  been  held  to  be  an  encumbrance.*  But  where 
the  owner  of  an  upper  and  lower  mill  and  dam  had  sold 
tliem  to  different  persons,  it  was  held  that  the  existence 
of  the  lower  dam,  with  the  right  of  raising  water  by  it  to 
the  point  at  which  it  stood  at  the  time  of  the  execution  of 
the  deed,  was  not  a  breach  of  the  covenant  against  en- 
cumbrances, which  the  conveyance  of  the  upper  mill  con- 
tained. "The  right  to  the  use  of  the  water  below  the 
granted  premises,  as  modified  by  the  appropriation  previ- 
ously made  for  the  lower  mill,  was  not,  in  legal  contem- 
plation, an  encumbrance,  but  rather  in  the  nature  of 
parcel  of  such  lower  estate."®  Where  a  millpond  caused 
by  a  dam  on  adjoining  property  had  flooded  a  tract  of 
land  for  a  sufficient  length  of  time  to  create  a  prescriptive 
right,  it  was  held  that  this  right  of  flooding  was  not  an 
encumbrance.*     It  has  been  held  that  if  a  millowner  above 

1  Jenks  V.  Ward,  4  Met.  412.  But  see  Estabrook  v.  Smith,  6  Gray, 
572;  66  Am.  Dec.  445. 

'  Kellogg  V.  Robinson,  6  Vt.  276;  27  Am.  Dec.  550.  And  see  Bronson 
V.  Coffin,  108  Mass.  175,  187;  11  Am.  Rep.  335;  Burbank  v.  Pillsbury,  48 
K.  H.  475;  97  Am.  Dec  633.  But  see,  also,  Parisii  v.  Wliitney,  3  Gray, 
516;  Plymouth  v.  Carver,  16  Pick.  183.  Such  an  a^'reement  is  construed 
as  a  covenant  and  not  as  a  condition:  Hartung  v.  Witte,  59  Wis.  285. 
But  .see  Floyd  v.  Clark,  7  Abb.  N.  C.  136. 

»  Hunt  V.  Marsh,  80  Mo.  396;  Patterson  v.  Yancy,  81  Mo.  379. 

*  Ginn  v.  Heath,  31  Me.  42. 

»  Carey  v.  Daniels,  8  Met.  466. 

•  Kutz  V.  McCune,  22  Wis.  628 ;  99  Am.  Dec.  85.  This  case  was  de- 
cided on  the  principle  that  where  property  is  notoriously  subject  at  the 
time  to  some  easement  or  servitude  affecting  its  physical  condition,  pur- 
chasers take  it  subject  to  such  rights.  But  this  principle  is  not  uni- 
versally accepted. 


§  909  COVENANTS.  1254 

cerfain  land  lias  the  right  to  have  a  natural  stream  of 
water  pass  over  land  below,  such  a  right  is  not  an  encum- 
brance.' This  covenant  relates  to  rights  existing  in  the 
property  conveyed  in  favor  of  parties  other  than  the 
grantor,  which,  as  against  the  grantor  and  his  assigns,  may 
be  exercised  upon  and  enforced  against  such  property. 
Hence,  where  a  millpond  and  surrounding  lands,  portions 
of  which  were  sometimes  flooded,  are  owned  by  one  per- 
son, the  idea  of  an  easement  does  not  attach  to  such  use 
of  the  water,  while  such  person  owns  all  the  land.  The 
land  with  the  stream  and  use  of  it  as  a  water  right  con- 
stitute an  entire  estate,  of  which  the  dam  and  its  use  are 
parcel,  and  neither,  it  is  held,  can  be  considered  an  en- 
cumbrance within  the  meaning  of  the  covenant.^ 

§  909.  Kig-ht  to  use  stairway  in  common. — A  deed 
was  executed  with  covenants.  The  owner  of  adjoining 
premises  had  the  right  to  use  in  common  a  stairway 
which  was  a  part  of  the  premises  conveyed.  An  action 
was  brought  for  a  breach  of  the  covenant  against  encum- 
brances, on  the  ground  that  the  right  to  such  use  was  a 
breach.  It  was  contended  before  the  court  that,  because 
the  stairway  was  not  in  existence  when  the  covenant  giv- 
ing the  adjoining  owner  the  use  of  the  stairway  was  made, 
the  encumbrance  did  not  run  with  the  land,  but  was  sim- 
ply a  personal  covenant  between  the  immediate  parties  to 
it.  The  court,  however,  decided  that,  whatever  the  pre- 
vious condition  of  things  may  have  been,  there  was  a  valid 
subsisting  encumbrance,  in  the  nature  of  an  easement, 
upon  the  premises,  and  that  the  covenant  against  encum- 
brances was  clearly  broken  by  the  existence  of  this  ease- 
ment.^ 

^  Prescott  V.  Williams,  5  Met.  429 ;  39  Am.  Dec.  638. 

^  Harwood  v.  Beaton,  32  Vt.  724.  For  other  cases  relative  to  water 
rights,  see  Dunklee  v.  Wilton  R.  R.  Co.,  4  Fost.  (N.  H.)  489;  Gould  v. 
Boston  Co.,  13  Gray,  442;  Morgan  v.  Smith,  11  111.  194;  Fitch  v.  Sey- 
mour, 9  Met.  462. 

*  McGowen  v.  Myers,  60  Iowa,  256. 


1255  COVENANTS.  §  910 

§  910.  Public  highways  as  encumbrances. — Tlie  de- 
cisions of  the  courts  as  to  whether  the  existence  of  a 
public  highway  should  be  considered  an  encumbrance 
are  conflicting,  and  in  the  same  State,  in  some  instances, 
the  course  of  decision  has  been  vacillating.  Decisions 
may  be  found  to  the  effect  that  a  public  road  is  not  an 
encumbrance.*  And  in  Indiana,  this  was  at  first  laid 
down  as  the  law.^  But  subsequently  this  decision  was 
overruled,  and  the  court  decided  that  a  public  road  or 
street  is  an  encumbrance.'     And  in  most  of  the  States, 

1  P.^erson  v.  Arthurs,  9  Watts,  152;  Wilson  v.  Cochran,  10  Wright, 
233;  Whitbeck  v.  Cook,  15  Johns.  483;  8  Am.  Dec.  272;  Jordan  v.  Eve, 
31  Gratt.  1.  In  Wilson  v.  Cocliran,  swpra.  Woodward,  C.  J.,  speaking 
for  the  court,  said  :  "  Public  roads  are  laid  out  in  Pennsylvania  by  author- 
ity of  the  law,  in  pursuance  of  the  authority  of  Penn,  who  establislied  the 
custom  of  allowing  to  every  grantee  six  acres  in  the  hundred  as  a  com- 
pensation for  the  roads  that  should  thereafter  be  opened,  and  they  con- 
fer on  the  public  merely  a  right  of  passage,  whilst  the  title  to  the  soil  is 
left  undisturbed  in  the  owner  of  the  land  through  which  they  pass.  A 
purchaser  who  sees  such  a  road  that  has  been  used  thirty  years  upon 
the  land  he  is  buying,  has  no  right  to  consider  it  an  encumbrance  within 
the  meaning  of  a  covenant  against  encumbrances."  In  Peterson  v. 
Arthurs,  the  court,  per  Mr.  Justice  Kennedy,  observed:  "Although  a 
puVjlic  highway,  no  doubt,  is,  in  many  instances,  an  injury  instead  of  a 
benefit  to  the  holder  or  owner  of  the  land  upon  which  it  is  located,  and 
therefore  tends  to  lessen  its  value  in  the  estimation  of  a  purchaser,  who, 
before  he  closes  his  contract  for  his  purchase  of  land,  has  seen  it  and 
made  himself  acquainted  with  its  locality  and  the  state  and  condition  of 
t;  and,  consequently,  if  there  be  a  public  road  or  highway  open  and 
in  use  upon  it,  he  must  be  taken  to  have  seen  it,  and  to  have  fixed  in 
his  own  mind  the  price  that  he  was  willing  to  give  for  the  land,  with  a 
reference  to  the  road,  either  makins  the  price  less  or  more,  as  he  con- 
ceived the  road  to  be  injurious  or  advantageous  to  the  occupation  or  en- 
joyment of  the  land."  See,  also,  Ake  v.  Mason,  101  Pa.  St.  17 ;  Cincinnati 
V.  Bracliman,  35  Ohio  St.  289. 

'■'  Scribner  v.  Holmes,  16  Ind.  142. 

»  Burk  V.  Hill,  48  Ind.  52;  17  Am.  Rep.  731.  After  the  decision  had 
been  made,  a  petition  for  a  rehearing  was  liled,  and  Chief  Justice  Bus- 
kirk,  in  delivering  the  opinion  of  the  court  in  this  petition,  said:  "  It  is 
insisted  that  our  ruling  is  in  direct  conflict  with  Scribner  v.  Holmes,  16 
Ind.  142.  That  case  does  not  seem  to  have  received  much  consideration. 
The  opinion  is  as  follows :  'Per  curiam.— nn&  case  was  tried  on  May 
16th,  on  which  day  a  motion  for  new  trial  was  overruled,  exception 
taken,  and  leave  given  to  file  a  bill  of  exceptions  in  thirty  days.  The 
bill  was  not  filed  until  July  6th.  That  was  too  late.  A  legal  public 
highway  in  actual  use  is  not  embraced  in  a  general  covenant  against  en- 


§   010  COVENANTS.  1256 

the  rule  prevails  that  a  public  highway  or  road  is  an  en- 
cumbrance, whose  existence  is  a  breach  of  the  contract.^ 

cumlirances.  It  would  be  unreasonable  that  it  should  be.  See  Rawle 
on  Covenants,  141,  et  seq.'  The  court  having  held  in  that  case  that  the 
bill  of  exceptions  did  not  constitute  a  part  of  the  record,  there  was  no 
question  presented  for  decision,  and  all  that  was  said  in  reference  to 
what  encumbrances  were  embraced  in  the  covenants  of  a  deed  was  obiter. 
Although  what  was  said  was  in  direct  conflict  with  the  well-considered 
case  of  Medler  v.  Hiatt,  8  Ind.  171,  no  reference  was  made  to  such  case. 
Besides,  the  authorities  cited  do  not  sustain  the  ruling.  Rawle,  after 
referring  to  the  cases  of  Whitbeck  v.  Cook,  15  Johns.  483,  8  Am.  Dec. 
272,  and  Peterson  v.  Arthurs,  9  Watts,  152,  says  :  '  But  whatever  weight 
may  be  due  to  these  decisions,  it  cannot  be  denied  that  the  current  of 
authority  has  set  strongly  the  other  way,  and  the  ruling  in  Kellogg  v. 
Ingersoll,  2  Mass.  101,  has  been  approved  and  sustained  in  nearly  all 
the  New  England  States,  and  it  appears  to  be  definitely  settled  there 
that  a  public  highway  does  constitute  at  law  a  breach  of  this  covenant. 
And  in  a  very  recent  case  in  Illinois,  these  decisions  have  been  approved 
and  applied  to  the  case  where  the  encumbrance  complained  of  was  the 
rigi it  granted  to  a  railway  company  to  construct  their  road  across  the 
land  conveyed.'  Counsel  also  refer  us  to  several  cases  in  Pennsylvania 
in  conflict  with  our  ruling.  In  the  original  opinion,  it  was  stated  that 
the  ruling  had  been  uniform  in  that  State  in  the  opposite  direction,  and 
the  reason  of  sucli  ruling  was  stated.  In  Kutz  v.  McCune,  22  Wis.  628, 
99  Am.  Dec.  85,  the  rule  as  it  exists  in  Pennsylvania  is  approved  and 
applied.  On  the  other  hand,  our  ruling  is  supported  by  many  adjudged 
cases  which  were  not  cited  in  the  original  opinion,  and  which  we  now 
cite:  Herrick  v.  Moore,  19  Me.  313;  Haynes  v.  Young,  36  Me.  557; 
Lamb  v.  Danforth,  59  Me.  322;  8  Am.  Rep.  426;  Pritchard  v.  Atkinson, 
3  N.  H.  335;  Butler  v.  Gale,  27  Vt.  739;  Clark  v.  Estate  of  Conroe,  38 
Vt.  469;  Parish  v.  Whitney,  3  Gray,  516;  Harlow  v.  Thomas,  15  Pick. 
66;  Sprague  v.  Baker,  17  Mass.  586;  Giles  v.  Dugro,  1  Duer,  331;  Hub- 
bard V.  Norton,  10  Conn.  422;  Kellogg  v.  Malin,  50  Mo.  496;  11  Am. 
Rep.  426.  In  the  last  cases  cited,  the  court,  after  referring  to  the  rule 
as  it  exists  in  the  New  England  States,  says:  'Where  the  question  has 
come  up,  the  same  doctrine  has  been  approved  in  the  Western  States.' 
The  court  then  reviews  the  cases  in  Illinois  and  Iowa,  which  are  cited 

in  the  original  opinion Then,  as  a  highway  or  railway  located 

and  running  over  one's  land  is  an  encumbrance,  and,  to  a  greater  or  less 
degree,  obstructs  and  encumbers  the  free  use  and  enjoyment  of  the  land, 
it  follows  that  a  person  selling  land  thus  encumbered,  and  covenanting 
that  it  is  not,  must  be  held  to  perform  his  covenants  by  its  removal,  or 
respond  in  damages.  The  seller  may  protect  himself  by  excepting  such 
encumbrances  from  the  operation  of  the  covenants  of  his  deed."  And 
see  GillfiUan  v.  Snow,  51  Ind.  305,  308. 

1  Haynes  v.  Young,  36  Me.  557;  Butler  v.  Gale,  1  Williams  (Vt.),  742; 
Herrickw.  Moore,  19  Me.  313;  Pritchard  w.  Atkinson,  3  N.  H.  335;  Parish 
V.  Whitney,  3  Gray,  516;  Hubbard  v.  Norton,  10  Conn.  422;  Kellogg  v. 


1257  COVENANTS.  §  910 

The  existence  of  the  liability  of  land  to  be  assessed  for 
street  improvements  is  a  breach  of  this  covenant,  con- 
tained in  a  deed  \yhich  was  executed  between  the  time  of 
improving  the  street  and  levying  the  assessment/ 

Ingersoll,  2  Mass.  101.  In  Butler  v.  Gale,  1  Williams  (Vt.),  742,  the 
opinion  of  the  court  was  delivered  by  Chief  Justice  Kedfield,  who,  in 
the  course  of  it,  said :  "  In  this  country,  where  our  tenures  are  strictly 
allodial,  we  are  very  much  accustomed  to  consider  that,  if  another  really 
possesses  any  rights  in  our  land,  it  is  so  far  forth  an  encumbrance  upon 
our  title.  Whether  it  be  small  or  large  in  amount,  whether  it  be  a 
mortgage  or  a  right  to  flow  a  portion  or  all  of  the  land  for  a  shorter  or 
longer  period  during  the  year,  or  to  draw  water  from  a  well  or  spring,  or 
to  water  cattle  at  a  brook,  or  to  pass  across  the  land  on  foot,  or  with 
teams,  or  to  draw  wood  in  winter  only  across  the  land,  or  to  build  and 
maintain  a  railway  perpetually,  or  a  highway,  is  certainly  of  no  import- 
ance in  determining  the  mere  technical  question  of  encumbrance  or  no 
encumbrance.  And  it  can  make  no  difference  whether  this  right  is  noto- 
rious or  not.  If  the  question  of  an  encumbrance  were  to  be  determined 
by  its  notoriety,  or  what  is  the  same  thing,  by  its  being  known  to  the 
purchaser,-  it  must,  to  preserve  consistency,  be  extended  to  all  en- 
cumbrances. And,  in  that  view,  the  grantee  could  not  recover  upon  this 
covenant  for  paying  a  mortgage  which  he  knew  existed  at  the  time  of 
his  purchase.  But  the  contrary  is  perfectly  well  established,  and  in 
regard  to  these  rights  of  way,  if  they  existed  only  in  a  prior  grant,  and 
were  not  known  to  the  grantee  at  the  time  of  purchase,  no  one  could 
claim  that  they  did  not  constitute  a  breach  of  the  covenant  against  en- 
cumbrances. And  if  the  question  whether  a  highway  is  an  encumbrance 
upon  land  is  to  be  determined  by  the  fact  of  its  l^eing  open  and  notorious, 
it  resolves  itself  into  this,  whether  it  was  the  intention  of  the  parties  to 
treat  it  as  an  encumbrance  or  not.  And  the  same  rule  should  equally 
apply  to  a  mortgage  which  the  purchaser  agreed  to  pay.  But  no  lawyer 
will  contend  that  in  such  a  case,  if  the  grantor  covenants  against  all  en- 
cumbrances, he  is  not  liable  to  refund  the  money  paid  upon  the  mort- 
gage by  the  grantee ;  that  is,  he  is  so  liable  at  law.  This  is  the  written 
contract  of  the  parties,  and  it  cannot  be  set  right  in  a  cotirt  of  law, 
■where  the  writing  is  the  exclusive  evidence  of  the  contract.  But  in  such 
a  case,  the  party  must  resort  to  a  court  of  equity  to  restrain  tlie  other 
party  from  claiming  indemnity  against  an  encumbrance  which  was  in- 
tended to  be  excepted  from  the  covenant.  And  the  same  is  no  doubt 
true  of  a  covenant  against  encumbrances  so  far  as  highways  are  con- 
cerned. Ordinarily,  a  court  of  equity  would  readily  supi)ose  the  encum- 
brance of  an  existing  highway  or  railway,  or  any  otlier  known  and 
notorious  right  of  a  similar  character,  as  a  right  to  draw  water  from  a 
spring,  exercised  by  another  at  the  time  of  the  conveyance,  could  not 
have  been  intended  to  be  indemnified  against,  and  therefore  should  have 
been  excepted  from  the  operation  of  the  covenant,  and  would,  no  doubt, 
60  require  the  parties  to  treat  the  deed." 
'■  Fagan  v.  Cadmus,  46  N.  J.  L.  441. 


§  911  COVENANTS.  1258 

§  911.  Right  of  way  for  railroad. — On  the  same 
principle  which  dechires  that  the  existence  of  a  public 
road  is  an  encumbrance,  it  is  held  that,  also,  is  a  right 
of  way  for  a  railroad.^  The  supreme  court  of  Illinois, 
after  stating  that  a  public  highway  is  an  encumbrance, 
says  the  same  rule  must  apply  to  a  right  of  way  for  a  rail- 
road, and  observes:  "When  a  purchaser  obtains  title  by 
deed  without  covenant,  he,  of  course,  takes  it  subject  to 
all  defects  and  encumbrances  it  ma}'^  be  under  at  the  time 
of  the  conveyance."  One  of  the  arguments  that  may  be 
adduced  in  support  of  the  proposition,  that  a  right  of 
way  for  a  railroad  should  not  be  considered  as  an  encum- 
brance within  the  meaning  of  this  covenant,  is  the  fact 
that  such  right  of  way  must  have  been  known  to  the  par- 
ties. We  have  considered  this  point  in  a  previous  section, 
and  found  that  knowledge  of  the  existence  of  the  encum- 
brance was  no  defense  to  an  action  upon  the  covenant. 
If  the  grantor  sees  proper  to  insert  covenants  in  his  deed, 
he  does  so  voluntarily,  and  should,  in  case  of  a  breach, 
suffer  all  the  consequences  which  ordinarily  follow.  The 
reason  which  may  induce  a  purchaser  to  insist  on  a  cove- 
nant, is  that  he  fears  a  failure  of,  or  some  defect  in  the 
title,  and  seeks  to  protect  himself  in  this  mode.  The 
grantor  may  covenant  for  a  good  title  when  both  he  and 
the  grantee  know  that  the  title  is  defective.  As  said  by 
the  court  in  Illinois:  "If  he  were  perfectly  assured  on 
these  questions,  he  would  seldom  be  tenacious  in  obtain- 
ing a  covenant  or  warranty.  If,  then,  a  private  or  public 
way  is  an  encumbrance,  and  we  have  seen  that  it  is,  it 
follows  that,  in  principle,  a  turnpike  or  railway  legally 
located,  and  running  over  a  piece  of  land,  upon  the  same 
ground  and  for  the  same  reasons  must  be  held  to  be  an 

»  Barlow  v.  McKinley,  24  Iowa,  69;  Beach  v.  Miller,  51  111.  206;  2 
Am.  i:ep.  290;  Van  Wagner  v.  Van  Nostrand,  19  Iowa,  422;  Williamson 
V.  Hall,  62  Mo.  405;  Kellogg  v.  Malin,  50  Mo.  500;  11  Am.  Rep.  426; 
8.  c.  62  Mo.  429.  See  Haynes  v.  Young,  36  Me.  557 ;  Giles  v.  Dugro,  1 
Duer,  331;  Harlow  v.  Thomas,  15  Pick.  66;  Lamb  v.  Danforth,  69  Me. 
322 ;  8  Am.  Hep.  426. 


1259  COVENANTS,  §  912 

encumbrance,  as  it  in  an  equal  or  greater  degree  obstructs 
or  encumbers  the  free  use  of  the  lands."  ^ 

§  912.  Rigrl»t  to  lig-ht. — One  of  the  chief  difficulties 
in  harmonizing  the  decisions  upon  the  subject  of  what 
things  are  to  be  considered  encumbrances,  consists  in 
the  fact  that  different  courts  take  difterent  views  of  the 
importance  to  be  attached  to  easements  that  are  known 
to  the  purchaser  at  the  time  of  the  conveyance.  la 
the  case  of  highways,  some  courts,  in  deciding  them 
not  to  be  encumbrances,  have  been  led  to  this  conclu- 
sion by  the  consideration  that  their  existence  was  no- 
torious. On  the  other  hand,  it  has  been  stated  that  this 
circumstance  was  entitled  to  no  weight,  in  determining 
what  were  encumbrances.  On  the  ground  that  *'the  par- 
ties, in  the  absence  of  anything  to  the  contrary,  are  pre- 
sumed to  have  contracted  with  reference  to  the  then  con- 
dition and  state  of  the  property,  and  if  an  easement  to 
which  it  is  subject  be  open  and  visible,  and  of  a  continu- 
ous character,  the  purchaser  is  supposed  to  have  been 
willing  to  take  the  property,  as  it  was  at  the  time,  subject 
to  such  burthen,"  in  a  case  where  the  owner  of  two  ad- 
joining lots  leased  one  of  them  for  a  term  of  years,  and 
covenanted  that  the  lessee  should  have  the  right  to  open 
certain  windows,  obtaining  their  light  from  the  adjoining 
lot,  and  subsequently  conveyed  this  adjoining  lot,  with  a 
covenant  of  warranty  against  his  acts,  it  was  held  that 
the  existence  of  the  windows,  and  the  right  to  their  pres- 
ervation, was  not  a  breach  of  the  covenant.^ 

1  Beach  v.  Miller,  51  111.  206;  2  Am.  Rep.  290.  Land  for  right  of  way 
was  conveyed  to  a  railroad  company  in  consideration,  among  other 
thin2S,  of  free  passage  for  plaintiff  at  all  times  over  the  road,  and  the 
deed  provided  for  a  forfeiture  on  failure  to  comply  with  any  condition. 
The  road  was  conveyed  to  another,  but  no  agreement  was  maiie  in  regard 
to  plaintiff's  having  a  pass.  It  was  lield  that  though  the  grantee  fur- 
nished a  pass  for  a  while,  plaintiff  could  not  recover  damages  from  it  for 
failure  to  continue  the  pass,  as  his  right  of  action  was  against  the  com- 
pany to  whom  the  conveyance  was  originally  made:  Eddy  v.  Hinnant, 

82  Tex.  354.  ,,  ,     ,, 

^  James  v.  Jenkins,  34  Md.  1 ;  6  Am.  Rep.  300.  "As  the  wall  had  been 
erected,"  said  the  court,  "  and  the  lights  therein  were  plainly  to  be  seen 


§913  COVENANTS.  1260 

§  913.      Purchaser's   knowledge  of   encumbrance. — It 

has  sometimes  been  intimated  that  if  the  purchaser  has 
notice  of  encumbrances  at  the  time  he  takes  his  deed, 
that  he  shouhl  be  deemed  to  take  the  land  subject  to 
them,  and  if  he  desires  protection  against  them,  they 
should  be  expressly  mentioned  in  the  covenant/  But 
notwithstanding  some  statements  to  the  contrary,  it  seems 
to  be  settled  by  authority  that  the  fact  that  encumbrances 
are  known  to  the  purchaser  to  exist  at  the  time  of  the  ex- 
ecution of  the  deed  does  not  affect  his  right  to  recover  on 
the  covenant  against  encumbrances,  unless  they  are  ex- 
cepted in  terms  from  its  operation.^  "It  is  no  answer  to 
the  purchaser's  complaint  to  say  it  was  his  duty  to  search 
the  record,  and  to  have  protected  himself  by  some  special 

-when  the  appellant  purchased  the  property  overlooked  by  them,  it  is  but 
rational  to  conclude  that  he  contracted  with  reference  to  that  condition 

of  the  property,  and  that  the  price  was  regulated  accordingly The 

grantor,  by  his  covenant,  warranted  the  premises  as  they  were,  and  by 
no  means  intended  to  warrant  against  an  existing  easement,  which  was 
open  and  visible  to  the  appellant,  and  over  which  the  former  had  no 
power  or  control  whatever." 

1  2  Sugden  on  Vendors,  449.  And  see  as  to  covenant  of  warranty,  Ben- 
nett V.  Buchan,  76  N.  Y.  386. 

»  Snyder  v.  Lane,  10  Ind.  424;  Funk  v.  Voneida,  11  Serg.  &  R.  112; 
14  Am.  Dec.  617;  Hubbard  v.  Norton,  10  Conn.  422;  Lloyd  v.  Quimby,  5 
Ohio  St.  265;  Suydam  v.  Jones,  10  Wend.  185;  25  Am.  Dec.  552;  Perkina 
V.  Williams,  5  Cold.  513;  Sargent  v.  Gutterson,  13  N.  H.  473;  Worthing- 
ton  V.  Curd,  22  Ark.  285 ;  Harlow  v.  Thomas,  15  Pick.  70 ;  Medler  v.  Hiatt, 
8  Ind.  173;  Shanahan  v.  Perry,  130  Mass.  460.  A  covenant  against  en- 
cumbrances covers  those  known  as  well  as  those  unknown :  Burr  v.  Lan- 
caster, 30  Neb.  688;  27  Am.  St.  Rep.  488;  Clark  v.  Monroe,  38  Vt.  469; 
Butler  V.  Gale,  27  Vt.  739;  Watts  v.  Fletcher,  107  Ind.  391 ;  8  N.  E.  Rep. 
Ill ;  Burk  v.  Hill,  48  Ind.  52;  17  Am.  Rep.  731 ;  Quick  v.  Taylor,  113  Ind, 
540;  16  N.  E.  Rep.  588;  Kellogg  v.  Malin,  50  Mo.  496;  11  Am.  Rep.  426; 
Miller  v.  Desverges,  75  Ga.  407 ;  Smith  v.  Eason,  46  Ga.  316 ;  Prichard  v. 
Atkinson,  3  N.  H.  335;  Fletcher  v.  Cliamberlin,  61  N.  H.  438;  Foster  v. 
Foster,  62  N.  H.  532;  Van  Wagner  v.  Van  Nostrand,  19  Iowa,  422;  Gerald 
V.  Ellejs  45  Iowa,  322;  Barlow  v.  McKinley,  24  Iowa,  69;  McGowen  v. 
Myers,  60  Iowa,  256;  Farrington  v.  Tourtelott,  39  Fed.  Rep.  738;  Barlow  v. 
Delaney,  40  Fed.  Rep.  97;  Beach  v.  Miller,  51  111.  206;  2  Am.  Rep.  290; 
Long  V.  Moler,  5  Ohio  St.  271;  Doctor  v.  Darling,  22  N.  Y.  Rep.  594; 
Huyck  V.  Andrews,  113  N.  Y.  81;  10  Am.  St.  Rep.  432;  Butt  v.  Riffe,  78 
Ky.  252;  Hubbard  v.  Norton,  10  Conn.  422;  Herrick  v.  Moore,  19  Me. 
313 ;  Haynes  v.  Young,  36  Me.  557 ;  Lamb  v.  Danforth,  59  Me.  322;  8  Am. 


1261  COVENANTS.  §  914 

covenant  against  this  specific  encumbrance.  It  was  no 
part  of  this  case  that  he  had  actual  notice,  but  if  he  had, 
it  could  make  no  difference."^  It  has  been  held,  how- 
ever, by  a  divided  court,  that  a  breach  of  the  usual  cove- 
nants found  in  a  deed  does  not  arise  from  the  fact  that  a 
public  road  has  been  laid  out  across  the  land,  as  the  gran- 
tee has  constructive  notice  of  this  from  the  public  rec- 
ords.^ And  it  is  also  held  that  no  breach  of  the  usual 
covenants  in  a  deed  is  caused  by  the  existence  of  railways 
over  the  land  at  the  time  of  its  sale,  the  purchaser  being 
presumed  to  have  taken  the  land  with  knowledge  of 
them.* 

§  914.  Parol  evidence  to  exclude  encumbrance  from 
covenant. — It  is  a  well  settled  rule  that  parol  evidence  is 
inadmissible  to  contradict  a  written  contract.  Accord- 
ingly, where  it  is  intended  by  the  parties  that  a  certain 
encumbrance  is  to  be  excluded  from  the  general  operation 
of  the  covenant,  such  fact  should  be  mentioned  in  the 
deed.  When  both  parties  are  cognizant  of  encumbrances 
existing  on  the  land  to  be  conveyed,  this  covenant  is  fre- 
quently made  and  accepted.  The  grantor  may  intend  to 
discharge  them  frora  the  purchase  money,  or  to  remove 
them  at  some  future  period,  and  the  purchaser  has  a  right 
to  rely  on  the  language  of  the  covenant."  In  some  states, 
parol  evidence  is  admissible  to  show  that  the  plaintiff,  at 

Eep.  426;  Kellogg  v.  Tngersoll,  2  Mass.  97;  Parish  v.  Whitney,  S  Gray, 
516;  Sprague  r.  Baker,  17  Mass.  586;  Harlow  v.  Thompson,  15  Pick.  66; 
Ladd  V.  Noyes,  137  Mass.  151.  But  see,  as  to  a  public  road,  Heynies  v. 
Estey,  116  N.  Y.  501 ;  15  Am.  St.  Rep.  421 ;  Huyck  v.  Andrews,  113  N.  Y. 
81 ;  10  Am.  St.  Rep.  432;  Bennett  v.  Keehn,  67  Wis.  154. 

1  Funk  V.  Voneida,  11  Serg.  &  R.  110;  14  Am.  Dec.  617,  per  Duncan, 
J.  See,  also,  Taylor  v.  Gilnian,  25  Vt.  413;  Dunn  v.  White,  1  Ala.  645; 
Morgan  v.  Smith,  11  III.  200;  Grice  v.  Scarborougli,  2  Si.ear,  649;  42 
Am.  Dec.  391;  Barlow  v.  McKinley,  24  Iowa,  70;  Van  Wagner  t.  Van 
Noatrand,  19  Iowa,  427. 

^  Ake  V.  Mason,  101  Pa.  St.  117. 

•  Smith  V.  Hughes,  50  Wis.  620. 

*  See,  generally,  McGowen  v.  Myers,  60  Iowa,  256;  Biirbank  v.  Pills- 
ourv,  48  N.  H.  483;  97  Am.  Dec.  633;  Long  v.  Moler,  5  Ohio  St.  274; 
Harlow  v.  Thomas,  15  Pick.  70;  Refeld  v.  Woodfolk,  22  How.  326;  Keith 


§    915  COVKNANTS.  1202 

the  time  of  the  execution  of  the  deed,  agreed  himself  to 
discharge  the  encumbrance/  In  a  case  in  Missouri,  the 
deed  contained  a  covenant  against  encumbrances,  and  the 
purchaser  having  paid  certain  taxes,  brought  an  action  to 
recover  the  amount  so  paid.  The  court,  however,  per- 
mitted the  defendant  to  show  that  the  amount  of  the  taxes 
was  a  portion  of  the  consideration  price,  and  that  the 
purchaser  agreed  to  assume  their  payment.^  But  while 
the  rule  is  not  universal,  it  is  generally  held  that  aside 
from  the  question  of  fraud  or  mistake,  parol  evidence  is 
not  admissible  to  show  that  a  covenant  against  encum- 
brances, where  no  exception  is  contained  in  the  deed  it- 
self, was  not  intended  by  the  parties  to  apply  to  a  particular 
encumbrance.^  It  has  been  held  that  the  dechirations  of 
the  grantor  made  before  the  execution  of  the  deed,  are 
admissible  in  evidence  for  the  purpose  of  showing  that 
the  warranty  was  intended  to  cover  certain  liens  or  de- 
fects in  title  of  which  the  grantee  had  knowledge.* 

§  915.  Comments. — On  purely  equitable  principles,  it 
seems  harsh  to  say  that  where  there  is  a  well-known  ease- 
ment or  encumbrance,  the  covenant  should  embrace  it. 
But  if  the  rule  which  prohibits  the  introduction  of  parol 
evidence  to  vary  or  contradict  a  written  agreement  were 
departed  from,  disastrous  consequences  would  result.     It 

V.  Day,  15  Vt.  670;  Jaques  v.  Esler,  3  Green  Ch.  463:  Skinner  v.  Star- 
ner,  12  Harris,  123;  McLeod  v.  Skiles,  81  Mo.  595;  Dunn  t;.  White,  1 
Ala.  645;   Rawle  on  Covenants,  tit.  121. 

1  Fitzerv.  Fitzer,  29  Ind.  468;  Pitman  v.  Conner,  27  Ind.  337;  Allen 
V.  Lee,  1  Ind.  58;  48  Am.  Dec.  352;  Sidden  v.  Riley,  2J  III.  HI,  See 
Leland  v.  Stone,  10  Mass.  459,  afterward  limited  in  the  later  case  of 
Spurr  V.  Andrew,  6  Allen,  422. 

'^  Landman  v.  Ingram,  49  Mo.  212. 

'  Harlow  v.  Thomas,  15  Pick.  70;  Spurr  v.  Andrew,  6  Allen,  422; 
Townsend  v.  Weld,  8  Mass.  146;  McKennan  v.  Doutrhman,  1  Penn.  417; 
Donnell  v.  Thompson,  10  Me.  177;  L'5  Am.  Dec.  216;  Collingwood  v.  Ir- 
win, 3  Watts,  306;  Batchelder  v.  Sturgis,  3  Gush.  203;  Long  v.  Moler,  5 
Ohio  St.  271.  And  see,  also.  Van  Wagner  v.  Van  Nostrand,  19  Iowa, 
428;  Grice  v.  Scarborough,  2  Spear,  64J;  42  Am.  Dec.  391;  Suydam  v. 
Jones,  10  Wend.  185 ;  25  Am.  Dec.  552. 

*  Sk.nner  v.  Moye,  69  Ga.  476. 


1263  COVENANTS.  §  936 

is  safer  to  declare  tliat  the  covenant  against  encumbran- 
ces shall  apply  to  all  encumbrances,  whether  known  to 
exist  or  not,  than  it  is  to  admit   parol   evidence  to  de- 
termine what  were  the  unexpressed  and  secret  intentions 
of  the  parties  in  each  particular  case.     When  it  is  once  un- 
derstood that  this  covenant  means  just  what  its  language 
indicates,  every  encumbrance  desired  to  be  excluded  from 
its  operation   can  be  excepted    by  express   terms  in    the 
deed.     Where   the  covenantor  attempted  to  show  that  it 
was  agreed,  at  the  time  the  deed  was  executed,  that  the 
security  of  the  covenantee  should  consist  in  the  assign- 
ment  of  a  certain  judgment,  and    that   the   covenantor 
should  incur  no  liability  on  his  covenant,  the  court  said: 
"It  is  impossible  to  avoid  seeing  that  to  admit  such  proof 
would  not  only  be  admitting  evidence  to  contradict,  but 
to  alter  and   change  most   materiall}^  the  character  and 
effect  of  the  deed.     Instead  of  being  a  deed  with  covenant 
of  general  warranty,  as  it  purports  on  its  face,  it  would, 
by  the  operation  of  the  evidence  proposed  to  be  given, 
become  a  deed,  without  any  engagement  whatever  on  the 
part  of  the  grantor  for  the  goodness  of  the  title.'"     But 
if  through   fraud  or  mistake  the   deed  does  not  contain 
the  true  agreement  of  the  parties,  it  may  be  reformed  in 
equity.^ 

§  916.  Damag-es  for  breach  of  covenant  against  en- 
cumbrances.— This  covenant  is  considered  to  be  one  of 
indemnity.  If  the  covenantee  has  not  removed  the  en- 
cumbrance, it  may  be  that  he  will  never  be  disturbed  by 
it.  He  may  discharge  the  encumbrance,  but  if  ho  docs 
not  do  so  the  universal  rule  is  that  while  it  remains  un- 
discharged and  he  has  suffered  no  actual  injury,  he  is 
entitled    to    only  nominal    damages."     "The    doctrine    is 

1  Collint,'\vood  v.  Irwin,  3  Watts,  306, 

»  Busby  V.  Littl-field,  11  Fost.  (N.  II.)  199;  Haire  v.  Bak.T,  1  Seld. 
360;  Stanley  v.  Goodrich,  18  Wia.  505;  Taylor  r.  Gilnian,  25  Vt.  413; 
Butler  V.  Gale,  27  Vt.  744;  Metcalf  v.  I'litnam,  9  Allt^n.  99. 

»  De  La  Vergne  v.  Norris,  7  Johns.  358;  5  Am.  Di-c.  281  ;  Seileck  v. 
(iriswod,  57  Wis.  291;  Keasoner  v.  F]<iinund8'>n,  5  Ind.  3!»3;  Baliiwiii 
V.  Muuu,  2  Wend.  405;  20  Am.  Dec.  G27 ;   Brady  v.  Struck,  27  111.  478 


§   017  COVENANTS.  12G4 

well  settled  that  in  an  action  of  covenant  against  encuui. 
brances,  if  the  plaintiff  has  extinguished  the  encum- 
brance, he  is  entitled  to  recover  the  amount  paid  for  it; 
but  if  he  has  not  bought  it  in,  he  is  only  entitled  to  nom- 
inal damages."^  And  the  cost  of  extinguishing  the  en- 
cumbrance is  alwaj'S  the  measure  of  damages,  irrespective 
of  the  value  of  the  land  or  the  purchase  price.^  Where 
an  unexpired  lease  is  the  breach,  the  value  of  the  occupa- 
tion of  the  premises  daring  the  time  for  which  the  grantee 
has  been  deprived  of  their  use  is  the  measure  of  damages.' 

§  917.  Special  injury. —  The  rule  just  enunciated  ap- 
plies where  there  is  a  technical  breach  of  the  covenant  by 
the  existence  of  the  encumbrance,  but  where  it  has  not  been 

Andrews  v.  Davison,  17  N.  H.  413;  43  Am.  Dec.  606;  Mills  v.  Saunders, 
4  Keb.  190;  Brooks  v.  Moody,  20  Pick.  574;  Bean  v.  Mayo,  5  Greenl.  94; 
Davis  V.  Lyman,  6  Oonn.  255;  Pitcher  v.  Livingston,  4  Johns.  1;  4  Am. 
Dec.  229 ;  Robbins  v.  Arnold,  11  111.  App.  434 ;  Hall  v.  Dean,  13  Johns. 
105 ;  Randall  v.  Mallett,  14  Me.  51 ;  Prescott  v.  Trueman,  4  Mass.  627 ; 
3  A.m.  Dec.  246;  Snell  v.  Iowa  Homestead  Co.,  59  Iowa,  701 ;  Wyman  v. 
Ballard,  12  Mass.  304;  Richardson  v.  Dorr,  5  Vt.  20;  Eaton  v.  Lyman, 
30  Wis.  41 ;  Stewart  v.  Drake,  4  Halst.  141;  Garrison  v.  Sandford,  12  N. 
J.  L.  261 ;  Braman  v.  Bingham,  26  N.  Y.  483;  Foote  v.  Burnett,  10  Ohio, 
317;  36  Am.  Dec.  90;  Johnson  v.  Collins,  116  Mass.  392;  Jenkins  t>.  Hop- 
kins, 8  Pick.  348;  Cormings  v.  Little,  24  Pick.  289;  Tufts  v.  Adams,  8 
Pick.  547;  Leffingwell  v.  Elliott,  8  Pick.  457;  19  Am.  Dec.  343;  Clark  v. 
Swift,  3  Met.  390;  Thayer?;.  Clemence,  22  Pick.  490;  Patterson  v.  Stew- 
art, 6  Watts  &  S.  528;  40  Am.  Dec.  586;  Willetts  v.  Burgess,  34  111.  500; 
Cheney  i;.  City  National  Bank,  77  111.  562;  Richard  v.  Bent,  59  111.  38;  14 
Am.  Rep.  1 ;  Osgood  v.  Osgood,  39  N.  H.  209 ;  Smith  v.  Jefts,  44  N.  H. 
482;  Willson  v.  Willson,  25  N.  H.  235;  57  Am.  Dec.  320;  Standard  v. 
Eldredge,  16  Johns.  254;  Smith  v.  Ackerman,  5  Blackf.  541;  Pomeroy 
V.  Burnett,  8  Blackf.  142;  Pillsbury  v.  Mitchell,  5  Wis.  17;  Herrick  v. 
Moore,  19  Me.  313 ;  Clark  r.  Perry,  30  Me.  151 ;  Runnells  v.  Webber,  59 
Me.  488;  Reed  v.  Pierce,  36  Me.  455;  58  Am.  Dec.  761 ;  Edington  v.  Nix, 
49  Mo.  134;  St.  Louis  v.  Bissell,  46  Mo.  157;  Funk  v.  Voneida,  11  Serg. 
&  R.  110;  14  Am.  Dec.  617;  Beecher  v.  Baldwin,  55  Conn.  419;  3  Am. 
St.  Rep.  57;  Marsh  v.  Thompson,  102  Ind.  272;  Sac.  County  Bank  v. 
flooper,  77  Iowa,  435;  Harwood  v.  Lee,  85  Iowa,  622;  Lane  v.  Richard- 
ion,  104  N.  C.  642;  Bradshaw  v.  Crosby,  151  Mass.  235;  Johnson  v.  Col- 
ins,  116  Mass.  392. 

^  Pillsbury  v.  Mitchell,  5  Wis.  17,  21,  per  Cole,  J.  See,  also,  Price  v. 
Deal,  90  N.  C.  290. 

*  Walker  v.  Deaver,  79  Mo.  664 ;  Morehouse  v.  Heath,  99  Ind.  509. 

»  Fritz  V.  Pusey,  31  Minn.  368. 


1265  COVENANTS.  §  918 

discharged,  and  no  actual  injury  has  resulted.  But  if  the 
covenantee  has  been  really  injured,  he  may  recover  dam- 
ages for  such  injury,  notwithstanding  the  fact  that  the 
encumbrance  continues  undischarged.  A  good  illustra- 
tion of  this  principle  is  found  in  a  case  where  there  was 
a  paramount  mortgage  having  a  number  of  years  to  run 
upon  a  piece  of  land,  covenanted  to  be  free  from  encum- 
brances, and  the  creditors  of  the  covenantee  believing 
that  the  property  he  held  might  not  be  sufficient  to  pay 
off  the  encumbrance  and  all  his  debts,  began  to  seek  the 
collection  of  their  claims.  The  covenantee  in  conse- 
quence made  an  assignment,  and  the  court  held  that  if 
the  land  was  sold  by  process  of  law  for  so  much  less 
than  the  value  of  the  mortgage,  a  recovery  could  be  had 
on  the  covenant  for  the  full  amount  of  the  mortgage.^ 

§  918.  Removalof  encumbrance  by  purchase. — Where 
the  encumbrance  has  been  removed  or  paid  off  by  the 
covenantee,  the  rule  is  that  he  is  entitled  as  damages  for 
a  breach  of  the  covenant,  the  amount  that  he  has  paid  for 
this  end,  if  the  amount  was  reasonable  and  fair.^     "In  the 

1  Funk  V.  Voneida,  11  Serg.  &  R.  110 ;  14  Am.  Dec.  617.  See  Braman 
v.  IMngham.  26  N.  Y.  483.  See,  also,  Sewall  v.  Clarke,  51  Cal.  227; 
Levitsky  v.  Johnson,  35  Cal.  41. 

»  Grant  v.  Tallman,  20  N.  Y.  191 ;  75  Am.  Dec.  384;  Stoddard  v.  Gage, 
41  Me.  287 ;  Brandt  v.  Foster,  5  Iowa,  287 ;  Farnum  v.  Peterson,  111  Mass. 
148;  Brown  V.  Broadhead,  3  Wliart.  104;  Andrews  v.  Appel,  22  Hun,  429; 
lleftderson  v.  Henderson,  13  Mo.  151;  Kent  d.  Cantrall,  44  Iml.  452; 
Harlow  v.  Thomas,  15  Pick.  66;  Snyder  v.  Lane.  10  Ind.  424;  Rardin  v. 
Walpole,  38  Ind.  146;  Stambaugh  v.  Smith,  23  Ohio  St.  584;  Norton  v. 
Babcock,  2  Met.  516;  Baker  v.  Corbett,  28  Iowa,  320;  Spring  v.  Cliase, 
22  Me.  505;  39  Am.  Dec.  595;  Garrison  v.  Sandford,  12  N.  J.  L.  261; 
Thayer  v.  Clemence,  22  Pick.  490;  Chapel  v.  Bull,  17  Mass.  213;  Davis 
V.  Lyman,  6  Conn.  255 ;  Batchelder  v.  Sturgis,  3  Cush.  20") ;  Lane  t;. 
Richardson,  104  N.  C.  642;  Corbett  v.  Wrenn,  25  Or.  305;  Banihart  v. 
Hughes,  46  Mo.  App.  318;  Beecher  v.  Baldwin,  55  Conn.  419;  3  Am.  St. 
Kep.  57;  Wadhams  v.  Swan,  109  111.  46;  Bradshaw  v.  Crosby,  151  Mass. 
237;  Johnson  v.  Collins,  116  Miiss.  392;  Coburn  v.  Litchfield,  1.S2  Mass. 
449;  Harrington  v.  Murphy,  109  Mass.  299;  Smith  v.  Carney,  127 
Mass.  179;  Harwood  v.  Lee,  85  Iowa,  622;  Kelsey  v.  Remer,  43  Conn.  129; 
21  Am.  Rep.  638;  Smith  v.  Jefts,  44  N.  H.  482;  Fagan  v.  Caduiue,  46 
N.  J,  L,  441 ;  Hartshorn  v.  Cleveland,  52  N.  J.  L.  473. 

UKELiS,    VOU    II.  —   80 


§   919  COVENANTS.  1266 

absence  of  fraud,"  says  Strong,  J.,  "a  party  who  has  pur- 
chased real  estate,  and  received  a  deed  for  it,  containing 
a  covenant  that  it  is  free  from  any  encumbrance,  and  has 
subsequently  paid  off  and  discharged  an  encumbrance, 
may  set  off  what  has  been  paid  by  him  against  the  amount 
due  on  any  mortgage  for  the  purchase  money.  In  order 
to  avail  himself  of  such  defense,  however,  he  would  be 
bound  to  prove  either  what  had  been  paid  by  him  was 
actually  due,  or  that  he  had  given  notice  to  his  vendor  re- 
quiring that  such  vendor  should  pay  off  the  encumbrance 
within  a  limited  time,  or  that  otherwise  the  purchaser 
would  pay  a  specified  amount.  Some  of  the  authorities 
lay  down  the  rule  that  the  purchaser  may  set  off  or  recover 
the  amount  paid  without  any  qualification;  but  it  seems 
to  me  reasonable  that  a  vendor  who  has  been  innocent  of 
any  fraud  should  have  an  opportunity  to  set  himself  right 
before  he  should  be  obliged  to  pay  or  allow  more  than  the 
amount  actually  due.  It  is,  1  think,  well  settled  that  where 
the  encumbrance  has  not  been  paid  off  by  the  purchaser 
of  the  land,  and  he  has  remained  in  quiet  and  peaceable 
possession  of  the  premises,  he  cannot  have  relief  against 
his  contract  to  pay  the  purchase  money,  or  any  part  of  it, 
on  the  ground  of  defect  of  title.  The  reason  is,  that  the 
encumbrance  may  not,  if  let  alone,  ever  be  asserted  against 
the  purchaser,  as  it  may  be  paid  off  or  satisfied  in  some 
other  way;  and  then  it  would  be  inequitable  that  any  part 
of  the  purchase  money  should  be  retained."^ 

§  919.  Burden  of  proof. — It  does  not  follow  that  the 
price  paid  was  the  fair  and  reasonable  value  of  the  en- 

1  Grant  v.  Tallman,  20  N.  Y.  191,  194;  75  Am.  Dec.  384.  See,  also, 
McGary  v.  Hastings,  39  Cal.  360;  2  Am.  Rep.  456;  Eaton  v.  Tallmage. 
22  Wis.  502;  Hurd  v.  Hall,  12  Wis.  112;  Bailey  v.  Scott,  13  Wis.  618; 
Waldo  V.  Long,  7  Johns.  173;  Reed  v.  Pierce,  36  Me.  455;  58  Am.  Dec. 
761;  Kelly  v.  Low,  18  Me.  244;  Wetmore  v.  Green,  11  Pick.  462;  Dim- 
mickt).  Lockwood,  10  Wend.  142;  Monahan  v.  Smith,  19  Ohio  St.  384; 
Smith  V.  Dixon,  27  Ohio  St.  471 ;  Moseley  v.  Hunter,  15  Mo.  322;  Guthrie 
V.  Russell,  46  Iowa,  269 ;  26  Am.  Rep.  135 ;  Knadler  v.  Sharp,  36  Iowa, 
232;  Jenkins  v.  Hopkins,  8  Pick.  346;  Smith  v.  Dixon,  27  Ohio  St.  471; 
Morrison  v.  Underwood,  20  N.  H.  369;  Stanard  v.  Eldridge,  16  Johns. 
254.     And  see  Connell  v.  Boulton,  25  Up.  Can.  Q.  B,  444, 


1267  COVENANTS.  §  920 

cumbrance.  The  covenantee  is  not  entitled  to  the  price 
that  he  has  been  compelled  to  pay,  or  has  seen  proper  to 
pay,  but  only  to  this  amount  when  he  has  fairly  and  rea- 
sonabl}'  paid  it.  It  accordingly  results  that  he  has  the 
burden  of  showing  this  fact.  "It  was  incumbent  on  him 
to  prove,"  said  Chilton,  J.,  in  one  of  these  cases,  "in  order 
to  recov^er  more  than  nominal  damages,  not  only  the 
amount  paid,  but  that  such  payment  was  the  reasonable 
value  of  the  interest  acquired.  To  hold  that  it  was  rea- 
sonable, from  the  bare  fact  of  payment,  is  to  assume  as 
true  the  fact  to  be  proved."  ^ 

§  920.      When    encumbrance    cannot    be    removed. — 

Where  the  encumbrance  is  of  such  a  character,  as  a  right 
of  dower,  or  an  easement,  that  it  cannot  be  removed  at 
the  option  of  the  grantor  or  grantee,  damages  are  awarded 
for  the  injury  that  proximately  is  caused  by  the  encum- 
brance.^ If  the  encumbrance  consists  of  a  right  of  way 
over  the  land  for  the  purpose  of  obtaining  water  from  a 
spring  thereon,  damages  should  be  awarded  upon  the  as- 
sumption that  just  compensation  should  be  made  for  the 
injury  resulting  from  the  continued  existence  of  the  ease- 
ment.' Tlie  value  of  timber  for  the  purposes  of  a  farm 
at  the  time  of  the  execution  of  the  deed,  will  be  taken  as 
the  amount  of  compensation  to  which  the  covenantee  is 
entitled  for  an  encumbrance,  consisting  of  a  prior  grant 
of  the  timber  with  the  right  of  entering  to  cut  it  during 
a  future  term.''  If  the  encumbrance  is  a  life  estate,  for 
the  existence  of  which  damages  are  sought,  the  purchaser 

»  Anderson  v.  Knox,  20  Ala.  156,  161.  See,  also,  Pate  v.  Mitchell,  23 
Ark.  590;  79  Am.  Dec.  114;  Dickson  v.  Desire,  23  Mo.  167;  Harlow  v. 
Thomas,  15  Pick.  69;  Lawless  v.  Collier,  19  Mo.  480. 

»  Prescottv,  Trueman,  4Mass.  627;  3  Am.  Dec.  246;  Greene  r.  CnM}z;li- 
ton,  7  R.  1.  1;  Kellogg  v.  Malin,  50  Mo.  496;  11  Am.  Rep.  426;  Hubbard 
V.  Norton,  10  Conn.  422;  Giles  v.  Dugro,  1  Ducr,  335;  Barlow  v.  Mc.Kin- 
ley,  24  Iowa,  69;  Van  Wagner  v.  Van  Nostrand,  19  Iowa,  427;  Jiutier 
V.  Gale,  27  Vt.  739;  Chapel  v.  Bull,  17  Mass.  212;  Beach  v.  Miller,  51 
111.  206;  2  Am.  Rep.  290;  Batchelderv.  Sturges,  3  Cuuh.  205;  Harlow  v. 
Tliomas,  15  Pick.  66. 

*  Harlow  v.  Thomas,  15  Pick.  66. 

*  Catlioart  v.  Bowman,  5  Pa.  tit.  317i 


§  921  COVENANTS.  126S 

is  entitled  to  compensation  for  tlie  value  of  such  estate  for 
the  time  that  he  is  deprived  of  the  enjoyment  of  the  prop- 
erty.' In  the  case  of  an  outstanding  lease,  the  purchaser 
may  be  allowed  the  annual  vahie,  or  interest  on  the  pur- 
chase money,  during  tlie  length  of  time  his  enjoyment  is 
suspended,  or  what  would  be  a  fair  rent  for  the  land.^ 
Only  nominal  damages,  however,  can  be  recovered  for 
the  existence  of  a  mere  inchoate  right  of  dower,  because 
until  the  death  of  the  husband  no  real  damage  can  re- 
sult.^ The  decrease  in  the  market  value  of  the  land  may 
usually  be  taken  as  a  proper  criterion  by  which  to  meas- 
ure tlie  damages  caused  by  the  existence  of  an  easement.'* 
If  the  covenant,  however,  is  in  the  form  of  an  agreement 
to  pay  and  discharge  the  encumbrances,  the  covenantee, 
although  he  has  not  extinguished  them,  is  entitled  to  re- 
cover the  amount  of  the  encumbrances.* 

§  921.  Covenant  for  quiet  enjoyment. — In  the  United 
States,  the  principal  or  sweeping  covenant  in   deeds  is 

1  Christy  v.  Ogle,  33  111.  295. 

'  Rickert  v.  Snyder,  9  Wend.  416;  Porter  v.  Bradley,  7  R.  I.  542.  See 
Grice  v,  Scarborough,  2  Spear,  649;  42  Am.  Dec.  391;  Morelandu.  Metz, 
24  W.  Va.  119 ;  49  Am.  Rep.  246. 

»  Sheaf  V.  O'Neil,  9  Mass.  13;  Hazelrig  v.  Huston,  18  Ind.  481;  Run- 
neils  V.  Webber,  59  Me.  488. 

*  Williamson  v.  Hall,  62  Mo.  405;  Giles  v.  Dugro,  1  Duer,  331;  Kel- 
logg t;.  Malin,  62  Mo.  429.  See  Burbanks  ■;;.  Pillsbury,  48  N.  H.  475;  97 
Am.  Dec.  633;  Bronson  v.  Coffin,  108  Mass.  175;  11  Am.  Rep.  335;  Weth- 
erbee  v.  Bennett,  2  Allen,  428. 

*  Hogan  V.  Calvert,  21  Ala.  199;  Booth  v.  Starr,  1  Conn.  249;  6  Am. 
Dec.  233;  Gilbert  ?;.  Wyman,  1  Oomst.  550;  Gardner  v.  Niles,  16  Me.  279; 
Webb  V.  Pond,  19  Wend.  423;  Ex  parte  Negus,  7  Wend.  499;  Lithbridge 
V.  Mytton,  2  Barn.  &  Adol.  772;  Gennings  v.  Norton,  35  Me.  308;  Lathrop 
V.  Atwood,  21  Conn.  123 ;  Ardesco  Oil  Co.  v.  N.  A.  Mining  Co.,  66  Pa.  St. 
381 ;  Mon;ihan  v.  Smith,  19  Ohio  St.  384;  Dorsey  v.  Dashiell,  6  Md.  204; 
Scobey  v.  Finton,  39  Ind.  275,  But  if  the  agreement  is  not  to  discharge 
the  debt,  but  to  save  harmless  from  damage,  the  covenant  becomes  one 
of  indemnity  only :  Chase  v. Hinman,  8  Wend.  452;  Mann  v.  Eckford, 
15  Wend.  502;  Kip  v.  Brigham,  6  Johns.  158;  Booth  v.  Starr,  1  Conn. 
244;  6  Am.  Dec.  233;  Thomas  v.  Allen,  1  Hill,  145;  Rockfeller  v.  Don- 
nelly, 8  Cowen,  623.  And  see  Stewart  v.  Clark,  11  Met.  384;  Hodgson 
V.  Bell,  7  Term  Rep.  97;  Sparkes  v.  Martindale,  8  East,  593;  Holmes  v. 
Rhodes,  1  Bos.  &  P.  638;  Devol  v.  Mcintosh,  23  Ind,  529;  Warwick  v, 
Richardson,  10  Mees.  &  W.  284;  Churchill  v.  Hunt,  3  Denio,  321. 


1269  COVENANTS.  §  921 

considered  to  be  the  covenantor  warranty;  but  in  Eno-- 
land,  the  covenant  for  quiet  enjoj-ment  occupies  this 
place.  It  is  the  covenant  generally  inserted  in  leases, 
however.  This  covenant  is  generally  expressed  in  this 
form:  "And  that  the  said  premises  shall  at  all  times  remain 
and  be  to  the  use  of  the  said  (purchaser),  his  heirs  and 
assigns,  and  be  quietly  entered  into  and  upon,  and  held 
and  enjoyed,  and  the  rents  and  profits  thereof  received 
by  the  said  (purchaser),  his  heirs  and  assigns,  accord- 
ingly, without  any  interruption  or  disturbance  by  him, 
the  said  (vendor),  or  any  person  or  persons  whomsoever."  ^ 
Or  in  this  form:  "And  that  the  said  (purchaser),  his  heirs 
and  assigns,  shall  and  may  at  all  times  hereafter,  freely, 
peaceably,  and  quietly  enjoy  the  same  without  molestation 
or  evictioi\  of  him,  the  said  (vendor),  or  any  person  or  per- 
sons whomsoever,"  and  sometimes  the  clause  is  added,"  law- 
fully claiming,  or  to  claim  the  same  by,  from,  or  under  him, 
them,  or  any  of  them,  or  by  or  with  his  or  their  acts,  means, 
consent,  default,  privity,  or  procurement."^  Where  taxes 
had  been  assessed  against  property  before  the  defendant 
owned  it,  it  was  held  that  this  claim  for  taxes  did  not 
come  within  his  covenant,  "against  the  lawful  claims  and 
demands  of  all  persons  claiming  by,  through,  or  under 
him,  and  against  no  other  claims  and  demands."^  Where 
no  legal  right  to  use  a  sewer  leading  from  the  property 
conveyed  to  and  across  adjoining  premises  owned  by  an- 
other exists,  an  apparent  right  to  such  use  is  not  a  legal 
appurtenance  within  the  meaning  of  a  deed  containing  a 
covenant  of  warranty.*  When,  at  the  time  of  the  execu- 
tion of  a  deed  conveying  with  a  covenant  of  quiet  enjoy- 
ment a  tract  of  land,  with  a  mill,  a  dam,  and  pond  for 
supplying  the  water, "with  the  appurtenances,"  there  were 
flush-boards  on  the  dam,  by  the  use  of  which  the  pond 
overflowed  the  land  adjoining,  of  which  fact  the  grantee  at 

*  Davidson's  Precedents  and  Forms  of  Conveyancing;  Rawle  on  Cov- 
enants, tit.  (4th  ed.)  25;  Housman's  Handbook  of  Conveyancing,  18G0. 

*  Kawle  on  Covenants,  tit.  (4th  ed.)  28,  125. 
»  West  V.  Spaulding,  11  Met.  556. 

*  Green  v.  Collins,  86  N.  Y.  246;  40  Am.  Rep.  531. 


§  022  COVENANTS.  1270 

time  of  purcliase  was  ignorant,  and  the  owner  of  the  ad- 
jacent property  recovered  against  the  grantee  for  over- 
flowing his  land,  thereby  compelling  him  to  reduce  the 
height  of  the  dam,  an  action  may  be  maintained  for 
breach  of  the  covenant/ 

§  1)22.      Not  broken  by  wrong-ful  acts  of  others. — By 

the  covenant  for  quiet  enjoyment,  the  grantor  covenants 
only  against  the  acts  of  those  claiming  by  title.  The 
covenantee  has  a  remedy  for  any  tortious  disturbance  by 
a  trespasser,  and  it  is  said  that  he  sliould  not  also  have  a 
remedy  against  his  covenantor.  Besides,  to  hold  the 
grantor  liable  for  a  tortious  disturbance  of  a  stranger 
would  be  to  make  him  liable  for  an  act  he  could  neither 
foresee  nor  prevent,  and  it  would  enable  the  covenantee 
to  make  a  tortious  disturbance  by  collusion  with  another. 
Then  the  covenant  generally  expresses  that  the  covenan- 
tee shall  lawfully  enjoy  the  premises,  and  contains  no  ex- 
press covenant  against  the  tortious  acts  of  others.  For 
these  reasons,  it  is  settled  that  the  tortious  act  of  a  stranger 
is  not  a  breach  of  this  covenant."  But  all  acts  of  the  cov- 
enantor himself,  or  of  others  done  at  his  command, 
whether  they  are  wrongful  or  not,  fall  within  this  cove- 
nant.^    But  a  covenant  against  the  acts  of  a  particular 

1  Adams  v.  Conover,  87  N,  Y.  422;  41  Am.  Rep.  381. 

*  Underwood  v.  Birchard,  47  Vt.  305;  Wilder  v.  Ireland,  8  Jones 
(N.  C.)  88;  Greenby  v.  Wilcocks,  2  Johns.  1;  3  Am.  Dec.  379;  Davis  v. 
Smith,  5Ga.  274;  47  Am.  Dec.  279;  Kelly  v.  Dutch  Church,  2  Hill,  111; 
Hoppes  V.  Cheek,  21  Ark.  585;  Meeks  v.  Bowerman,  1  Daly,  100;  Beebe 
V.  Swartwout,  3  Gilm.  180;  Brick  v.  Coster,  4  Watts  &  S.  499;  Yancey. 
V.  Lewis,  4  Hen.  &  M.  395;  Noonan  v.  Lee,  2  Black.  507;  Branger  i>. 
Manciet,  30  Cal.  624;  Playter  ?;.  Cunningham,  21  Cal.  232;  Foliiard  v. 
Wallace,  2  Johns,  402;  Gleason  v.  Smith,  41  Vt.  293;  Gardner  v.  Ketel- 
tas,  3  Hill,  330;  38  Am.  Dec.  637;  Surget  v.  Arighi,  11  Smedes  &  M.  96; 
49  Am.  Dec.  46;  Spear  v.  Allison,  8  Harris,  200;  Rantin  v.  Robertson,  2 
Strob.  336.  See,  al^o,  Wotten  v.  Hele,  2  Saund.  178,  n ;  Lewis  v.  Smith, 
9  Man.  G.  &  S.  610 ;  Nokes  v.  James,  Cro.  Eliz.  675 ;  Schuylkill  R.  R.  v. 
Schmoele,  7  Smith,  P.  F.  273;  Tisdale  v.  Essex,  Hob.  34;  Knapp  v. 
Marlboro,  34  Vt.  235;  Adams  v.  Conover,  22  Hun,  424. 

*  Sedgwick  t;.  Hollenback,  7  Johns.  376;  Crosse  v.  Young,  2  Show. 
425;  O'Keele  v.  Kennedy,  3  Cush.  325;  Mayor  of  New  York  v.  Mabie,  3 
Kern.  156;  64  Am.  Dec.  538;  Levitzky  v.  Canning,  33  Cal.  299;  Seaman 


i 


1271  COVENANTS.  §  922 

person,  who  is  named  in  the  covenant,   will  not  be  lim- 
ited to  his  lawful  acts.^ 

&  Browning's  case,   1  Leon.  157;   Cave  v.  Brookesby,  Jones,  W.  360; 
Lloyd  V.  Tomkies,  1  Tenn,  671;  Andrew's  case,  Cro.  Eliz.  214;  Wotten 
V.  Hele,  2  Saund.  180,  n;  Rawle  on  Covenants,  135.     In  Levitsky  v. 
Canning,  33  Cal.  299,  where  a  covenant  for  quiet  enjoyment  was  con- 
tained in  a  lease,  Sanderson,  J.,  in  delivering  the  opinion  of  the  court, 
said :  "  In  its  terms  the  covenant  is  very  general,  but  no  set  formula  is 
required ;  any  language  which  expresses  the  intent  to  promise  a  quiet 
and  peaceable  enjoyment  is  sufficient,  however  brief  it  may  be :  Rawle 
on  Covenants,  184.     Whether  it  is  broad  enough  to  include  strangers  or 
not  is  immaterial,  for  the  breach  alleged  was  committed,  if  at  all,  by  the 
lessor.    The  covenant  for  quiet  enjoyment  goes  only  to  the  possession, 
and  hence  the  general  rule  that  there  is  no  breach  unless  there  has  been 
an  eviction  or  an  invasion,  or  disturbance  oi  the  possession:  Waldron  v. 
McCarty,  3  Johns.  473;  Picket  v.  Weaver,  5  Johns.  120;  Sedgwick  v. 
Hollenback,  7  Johns,  380;  Whitbeck  v.  Cook,  15  Johns.  485;  8  Am.  Dec. 
272;  St.  John  v.  Palmer,  5  Hill,  601.    The  eviction  need  not  be  by  legal 
process :  Greenvault  v.  Davis,  4  Hill,  644.     Nor  need  there  be  a  complete 
ouster  or  expulsion ;  an  invasion,  disturbance,  or  prevention,  in  whole 
or  in  part,  will  constitute  a  breach  of  the  covenant:  Piatt  on  Covenants, 
327.     There  must  be  some  act  of  molestation,  affecting,  to  his  prejudice, 
the  possession  of  the  covenantee.     Forbidding  a  tenant  of  t!ie  covenantee 
to  pay  him  rent  will  not  amount  to  a  breach,  if  the  tenant,  notwith- 
standing, afterward  pays  the  rent :  Witch  cot  v.  Nine,  1  Brownl.  81.     But 
suppose  the  tenant  had  not  paid  the  rent,  but  in  consequence  of  the  cov- 
enantor's prohibition  had  refused  to  pay?    The  case  cited  certainly  im- 
plies very  strongly  that  it  would  then  have  amounted  to  a  bread),  and 
there  can  be  little  doubt  but  that  it  would  have  been  so  declared.    An 
act  of  molestation,  whether  committed  by  the  covenantor  himself  or  by 
another  at  his  command,  will  alike  amount  to  a  breach  of  the  covenant: 
Seamon  v.  Browning,   1  Leon.  157.     But  from  the  tbird  count  in  tlie 
complaint  it  appears  that  the  defendant  had  slandered  the  plaintiff's 
possession,  giving  out  and  pretending  publicly  tliat  he  had  no  right  to 
the  possession  of  the  demised   premises,  and  that  he  had  brought  two 
actions  at  law  to  recover  the  possession  of  the  premises  from  tlie  plain- 
tiff and  his  tenants,  under  the   pretense  that   his  lease  had  expired. 
That  in  consequence  of  these  actions  brought  against  himself  and  his 
tenants,  he  had  been  put  to  great  expense  in  defending  the  same,  and 
his  tenants  had  quit  the  premises,  leaving  the  same  vacant,  and  that  ho 
had  been  unable  to  rent  the  same  to  other  parties,   by  reason  of  their 

1  Nash  V.  Palmer,  5  Maule  &  S.  374;  Foster  v.  Mapes,  Cro.  Eliz.  212. 
And  see  Rawle  on  Covenants,  139;  Perry  v.  Edwards,  1  Strange,  400; 
Fowle  V.  Welch,  1  Barn.  &  C.  29;  Patton  v.  Kennedy,  1  Marsh.  A.  K. 
389;  10  Am.  Dec.  744;  Pence  v.  Duvall,  9  Mon.  B.  49.  Another  excep- 
tion to  the  general  rule  is  where  the  language  of  the  covenant  is  "  claim- 
ing or  pretending  to  claim"  :  Chaplain  v.  Southgate,  10  Mod.  383. 


§  923  COVENANTS.  1272 

§   J>23.      l!]xercise  of    rigrht  of    eminent  domain. — The 

object  of  the  covenant  for  quiet  enjoyment  is  to  indem- 
nify the  grantee  for  an  eviction  or  disturbance  caused  by 
a  defect  in  the  grantor's  title.  But  where  the  property  is 
taken  by  the  State  by  virtue  of  the  power  of  eminent  do- 
main, the  vendee  is  not  deprived  of  liis  land  because 
there  was  any  defect  in  the  vendor's  title.  The  title  that 
the  grantee  possesses  is,  presumably,  undoubtedly  good, 
and  the  State,  by  the  exercise  of  this  power,  takes  it  away 
from  him,  making  him  just  compensation.  If  the  exer- 
cise of  the  right  of  eminent  domain  were  a  breach  of  the 
covenant  for  quiet  enjoyment,  the  result  would  be  that 
the  grantee  would  receive  full  compensation  from  the 
State  for  his  premises,  and,  at  the  same  time,  would  have 
the  right  to  recover  from  his  grantor.  But  the  covenantee 
can  have  no  such  right.  His  remedy  is  to  look  to  the 
provisions  of  the  legislature  made  to  give  him  compensa- 
tion for  his  land,  and  not  to  the  covenant  for  quiet  enjoy- 
ment. It  is  therefore  settled  that  this  covenant  is  not 
broken  by  the  exercise  of  the  right  of  eminent  domain.' 

doubts  as  to  the  lawfulness  of  his  possession,  caused  by  the  acts  of  the 
defendant  in  bringing  said  suits,  and  publicly  declaring  that  the  posses- 
sion of  the  plaintiff  was  unlawful,  and  that  he  had  no  legal  right  to  let 
the  premises.  Was  this  a  breach  of  his  covenant  within  the  rule  already 
stated  and  the  cases  which  we  have  cited?  That  it  was  does  not  admit 
of  doubt.  Those  acts,  if  performed  by  him,  were  as  much  a  molestation, 
disturbance,  and  invasion  of  the  plaintiff's  possession  as  a  taking  by  the 
shoulders  and  a  forcible  eviction  of  the  plaintiff's  tenants  would  have 
been.  The  character  of  the  act  must  be  determined  by  the  results  which 
follow  it,  and,  in  view  of  the  results  which  are  alleged  to  have  followed 
the  acta  of  the  defendant,  there  can  be  no  question  that  he  disturbed 
and  interrupted  the  possession  of  the  plaintiff  to  his  injury,  which  is 
precisely  what  he  had  covenanted  not  to  do." 

1  Frost  V.  Earnest,  4  Wliart.  86;  Ellis  v.  Welch,  6  Mass.  246;  4  Am, 
Dec.  122;  Bailey?;.  Miltenberger,  7  Casey,  37;  Brimmer  v.  Boston,  102 
Mass.  19;  Folts -y.  Huntley,  7  Wend.  210;  Dobbins  v.  Brown,  2  Jones, 
75.  And  see  Schuylkill  R.  R.  v.  Schmoele,  7  Smith,  P.  F.  273;  Dyer  v. 
Wightman,  16  Smith,  P.  F.  427.  Where  slaves  have  been  sold  with 
covenants,  it  has  been  held  that  they  were  not  broken  by  emancipation: 
Whitworth  v.  Carter,  43  Miss.  61;  Osborn  v.  Nicholson,  13  Wall.  655; 
Phillips  V.  Evans,  38  Mo.  305;  Fitzpatrick  v.  Hearne,  44  Ala.  171 ;  4  Am 
Rep.  128;  Mayfield  v.  Barnard,  43  Miss.  270;  Walker  v.  Gatlin,  12  Fla| 
9;  HaskilU.  Sevier,  25  Ark.  152;  Willes  v.  Halliburton,  25  Ark.  173; 


1273  COVENANTS.  §  924 

§  924.  Actual  eviction. — To  operate  as  a  breach  of 
the  covenant  for  quiet  enjoyment,  an  eviction,  as  it  is 
technically  understood,  is  necessary.  Legal  process,  how- 
ever, is  not  essential  to  an  eviction.^  Wliere  a  grantee 
who  has  been  evicted  from  part  of  the  land  brings  an 
action  upon  the  covenants,  the  fact  that  he  took  posses- 
sion of  the  land  described  in  the  deed,  and  made  no  com- 
plaint as  to  the  quantity  of  land  conveyed,  accepting  the 
same  as  a  fulfillment  of  the  covenants  alleged  to  be  broken, 
is  no  defense  to  the  action.^  The  covenantee  is  not  obliged 
to  withhold  the  possession  from  the  rightful  owner,  nor 
to  enter  into  litigation  with  the  party  who  has  the  title. 
He  may  surrender  his  possession  to  the  true  owner,  and 
this  will  be  a  sufficient  ouster  to  enable  him  to  recover  on 
his  covenant.^  But  to  have  this  effect  there  must  have 
been  a  hostile  assertion  of  the  paramount  title.^  In  a  case 
in  Illinois,  Mr.  Justice  Eaton,  after  adverting  to  the  fact 

Porter  v.  Ralston,  6  Bush,  655;  Hand  v.  Armstrong,  34  Ga.  232;  Bass  v. 
Ware,  34  Ga.  386.  In  Osborn  v.  Nicholson,  supra,  Mr.  .Justice  Swayne 
Baid:  "Emancipation  and  eminent  domain  work  the  same  result  as  re- 
gards the  title  and  possession  of  the  owner.  Both  are  put  an  end  to. 
Why  should  the  seller  be  liable  in  one  case  and  not  in  the  other?  We 
can  see  no  foundation  in  reason  or  principle  for  such  a  claim." 

1  Greenvault  v.  Davis,  4  Hill,  645;  Parker  v.  Dunn,  2  Jones  (N.  C), 
204;  Ware  i;.  Lithgow,  71  Me.  62;  Coble  v.  Wellborn,  2  Dev.  390;  Leary 
V.  Durham,  4  Ga.  593;  Moore  v.  Frankenfield,  25  Minn.  540.  And  see, 
also,  Grist  v.  Hodges,  3  Dev.  200;  Booth  v.  Star,  5  Day,  282;  5  Am. 
Dec.  149;  Funk  v.  Oreswell,  5  Clarke,  86;  Hagler  v.  Simpson,  Bush.  386. 

^  Walterhouse  v.  Garrard,  70  Ind.  400. 

*  Axtel  V.  Chase,  83  Ind.  546;  Fowler  v.  Poling,  6  P.arb.  16S;  Drew  v. 
Towle,  10  Fost.  (N.  H.)  537 ;  64  Am.  Dec.  309;  Loomis  v.  Bedel,  11  N.  H. 
83;  Woodward  v.  Allen,  3  Dana,  164;  Stone  v.  Hooker,  9  Cowen,  157; 
Haffey  v.  Birchetts,  11  Leigh,  83;  Sterling  v.  Peet,  14  Conn.  254;  Poyn- 
tell  V.  Spencer,  6  Barr.  254;  Patton  v.  McFarlane,  3  Pa.  425.  And 
Bee  Slater  v,  Pvawson,  1  Met.  450,  455;  Steiner  v.  Baughman.  2  Jones, 
106;  Ferriss  v.  Harshea,  1  Mart.  &  Y.  50;  17  Am.  Dec.  782;  McDowell 
V.  Hunter,  Dud.  (Ga.)  4;  Blydenburgh  v.  Cotheal,  1  Duer,  196;  Hamil- 
ton V.  Cutts,  4  Mass.  350;  3  Am.  Dec.  222;  Leary  v.  Durham.  4  (ia.  593, 
606.  But  see  Beebe  v.  Swartwout,  3  Gilm.  182.  183;  Hoy  v.  TaUaferro, 
8  Smedes  &  M.  541 ;  Dennis  v.  Heath,  11  Smedea  &  M.  218;  49  Am.  Dec. 
61. 

♦  Knepper  v.  Kurtz.  8  Smith,  P.  F.  480;  Spraguo  v.  Baker,  17  Masa. 
590;  Dupuy  v.  Koebuck,  7  Ala.  488. 


§  024  COVENANTS.  1274 

that  there  might  be  a  constructive  eviction,  as  where  the 
premises  were,  at  the  time  of  the  execution  of  the  cove- 
nant, in  the  possession  of  another,  holding  them  under  a 
paramount  title,  in  which  case  the  covenant  would  be 
broken  as  soon  as  made,  proceeded  to  say:  "But  this  is 
not  the  only  case  of  constructive  eviction  which  may  now 
be  considered  as  well  settled  by  authority,  and  sustained 
by  sound  principles  of  morality  and  justice.  If  the  cove- 
nantee be  in  the  actual  possession  of  the  estate,  he  has 
the  right  to  yield  that  possession  to  one  who  claims  it 
under  a  paramount  title,  without  resisting  him  by  force 
or  litigation;  and  this  is  sustained  by  the  same  reasons  of 
justice  and  good  government  which  are  applicable  to  the 
first  exception.  This,  however,  is  not  to  be  understood  as 
holding  that  the  mere  existence  of  a  paramount  title  con- 
stitutes a  breach  of  the  covenant,  or  that  it  will  authorize 
the  covenantee  to  refuse  to  take  possession  when  it  is 
quietly  tendered  to  him,  or  when  he  can  do  so  peaceably, 
and  then  claim  that  by  reason  of  such  paramount  title 
and  his  want  of  possession,  the  covenant  is  broken;  nor 
will  it  justify  him  in  abandoning  the  possession  with- 
out demand  or  claim  by  the  one  holding  the  real  title. 
His  possession  under  the  title  acquired  with  the  covenant 
is  not  disturbed  by  the  mere  existence  of  that  title;  and 
he  has  no  right  to  assume  that  it  ever  will  be,  until  he 
actually  feels  its  pressure  upon  him.  He  must  act  in  good 
faith  toward  his  covenantor,  and  make  the  most  of 
whatever  title  he  has  acquired,  until  resistance  to  the 
paramount  title  ceases  to  be  a  duty  to  himself  or  his  cov- 
enantor."^ The  surrender  must  be  made  to  the  holder  of 
the  paramount  title,  and  not  to  the  vendor.^  Where  the 
land  is  unoccupied,  and  a  covenant  of  warranty  is  executed* 
and  the  land  remains  vacant,  and  the  owner  of  the  true 
title,  for  the  purpose  of  determining  the  title,  commences 
actions  of  ejectment,  the  covenantee  may  waive  the  ob- 

^  Moore  v.  Vail,  17  El.  190.    And  see,  also,  Hagler  v.  Simpson,  1  Busb. 
386. 

'  Axtel  V.  Chase,  83  Ind.  546. 


1275  COVENANTS.  §  925 

jection  of  his  noiioccupation  to  this  form  of  action.  He 
may  try  the  title  in  these  actions,  and  if  judgment  be 
awarded  against  him  on  the  question  of  title,  he  may 
abandon  any  further  claim  to  the  land,  and  a  breach  of 
the  covenant  results.^  Where  a  grantee  has  never  secured, 
nor  been  able  to  secure,  possession  of  the  land  conveyed, 
by  reason  of  the  existence  of  a  paramount  title  in  anotlier, 
and  possession  by  him,  these  facts  are  equivalent  to  an 
eviction.'^ 

§  925,  Purchaser  has  burden  of  proof  if  he  yields  to 
adverse  title. — If  the  purchaser  refuses  to  yield  possession 
to  the  paramount  title  until  it  has  been  established  by  a 
judgment,  and  the  covenantor  has  been  properly  notified 
of  the  suit,  then  the  validity  of  the  paramount  title  is 
conclusively  shown  by  the  judgment  or  decree  when  in- 
troduced in  evidence.^  But  if  he  elects  to  yield  to  the 
paramount  title  before  it  has  been  judicially  established, 
he  does  so  at  his  peril.  He  has,  in  such  a  case,  the  bur- 
den of  proof  when  attempting  to  recover  from  his  cov- 
enantor, and  must  clearly  establish  the  adverse  title  which 
he  has  thus  recognized.'*  "While  he  is  not  bound  to  con- 
test where  the  contest  would  be  hopeless,  or  resist  where 
resistance  would  be  wrong,  yet  always  where  he  yields 
without  a  contest  or  a  resistance,  he  must  take  upon  him- 
self tiie  burden  of  showing  that  the  title  was  paramount, 
and  that  he  yielded  the  possession  to  the  pressure  of  that 
title.  Whenever  he  does  yield  quietly,  he  does  so  at  his 
peril.'"^ 

^  AUis  V.  Nininger,  25  Minn.  525. 
'  Blondeau  v.  Sheridan,  81  Mo.  545. 

*  Miner  v.  Clark,  15  AVend.  427 ;  Bridger  v.  Pierson,  45  N.  Y.  803 ; 
Wilson  V.  McElwee,  1  Strob.  65;  Middleton  v.  Thompson,  1  Spear,  67. 

*  George  v.  Putney,  4  Gush.  355;  50  Am.  Dec.  788;  Gallis  v.  Coghill,9 
Lea  (Tenn.),  137;  Hamilton  v.  Gutts,  4  Mass.  350;  3  Am.  Dec.  222; 
Thomas  v.  Stickle,  32  Iowa,  76;  Stone  v.  Hooker,  9  Cow.  157;  Peck  v. 
Hensley,  20  Tex.  678;  Greenvault  v.  Davis,  4  Hill,  613;  Witty  v.  High- 
tower,  12  Smedi'8  &  M.  481. 

»  Moore  v.  Vail,  17  111.  190,  per  Eaton,  J. 


§§  926, 927  COVENANTS.  127G 

§  926.  Comments. — This  rule  is  obviously  a  reason- 
able one.  The  covenantor  must,  certainly,  have  an  op- 
portunity of  contesting  the  validity  of  the  title  alleged 
to  be  paramount.  Where  the  covenantee  is  sued,  and  the 
covenantor  is  notified  and  thus  enabled  to  defend,  it  is 
his  own  fault  if  he  does  not  do  so,  and  he  ought  to  be 
bound  by  the  judgment.  But  where  the  covenantee  yields 
possession  to  what  he  is  pleased  to  suppose  is  a  superior 
title,  he  should  be  compelled  to  make  out  that  title  with 
as  great  a  degree  of  particularity  as  if  he  were  suing  for 
the  possession  of  the  premises. 

§  927.      Premises  in    possession  of  another. — If  at  the 

time  the  conveyance  is  executed  the  premises  are  in  the 
possession  of  a  person  other  than  the  grantor,  claiming 
by  a  paramount  title,  the  covenant  for  quiet  enjoyment 
or  warranty  is  broken  at  once  by  this  very  fact.^  If  this 
were  not  so,  the  only  redress  which  the  covenantee  could 
have,  would  be  either  to  become  a  trespasser  by  entering 
or  to  bring  a  needless  suit.  It  is  therefore  settled  law, 
that  there  is  an  eviction  eo  instanti,  if  the  prem- 
ises are  actually  in  the  possession  of  a  third  person, 
claiming  under  a  paramount  title  at  the  time  the  cove- 
nant is  made.  Still,  some  decisions  may  be  found  to  the 
contrary,  which  hold  or  countenance  the  idea  that  the 
covenantee  in  a  case  of  this  kind  cannot  recover  on  the 
covenant  for  quiet  enjoyment.^     The  possession,  however, 

»  Murphy  v.  Trice,  48  Mo.  250;  Grist  v.  Hodges,  3  Dev.  200:  Russ  v. 
Steele,  40  Vt.  315 ;  Duvall  v.  Craig,  2  Wheat.  62;  Park?;.  Bates,  12  Vt. 
881;  36  Am.  Dec.  347;  Clark  v.  Conroe,  38  Vt.  475;  Phelps  v.  Sawyer,  1 
Aiken,  318;  Noonan  v.  Lee,  2  Black.  507;  Barnett  v.  Montgomery,  6 
Mon.  328;  Curtis  «.  Deering,  12  Me.  501 ;  Blanchard  u.  Blanchard,  48 
Me.  174;  Caldwell  v.  Kirkpatrick,  6  Ala.  60;  41  Am.  Dec.  36;  Cummins 
V.  Kennedy,  3  Litt.  12^;  14  Am.  Dec.  45;  Loomis  v.  Bedel,  UN.  H.  74; 
Small  V.  Reeves,  14  Ind.  164;  Rea  v.  Minkler,  5  Lans.  296;  University  of 
Vermont  v.  Joslyn,  21  Vt.  522;  Wilder  v.  Ireland,  8  Jones  (N.  C),  87. 
And  see  Randolph  v.  Meeks,  Mart.  &  Y.  58;  Miller  v.  Halsey,  2  Green, 
5!) ;  Playter  v.  Cunningham,  21  Cal.  229 ;  Witty  v.  Hightower,  12  Smedea 
&  M.  478;  Banks  v.  Whitehead,  7  Ala.  83. 

^  St.  John  V.  Palmer,  5  Hill,  601 ;  Kortzv.  Carpenter,  5  Johns.  120 J  Day 
V.  Chism,  10  Wheat.  452.     See  Holder  v.  Taylor,  Hob.  12. 


1277  COVENANTS.  §  928 

must  be  under  an    actually   paramount   title,    and    not 
merely  an  adverse  possession.^ 

§  928.  Purchase  of  paramount  title. — As  has  been 
observed,  the  purchaser  may  surrender  possession  to  the 
owner  of  the  paramount  title,  and  this  is  an  eviction, 
which  entitles  him  to  a  recovery  on  his  covenant.  But  he 
may  also  purchase  the  paramount  title,  in  a  proper  case, 
without  yielding  possession,  and  be  entitled  to  recover 
from  his  covenantor.^  In  a  case  in  California,  Mr.  Jus- 
tice Temple  observed,  after  an  examination  of  a  number  of 
cases:  "The  true  rule  deducible  from  the  recent  cases  is, 
that  the  covenant  is  broken  whenever  there  has  been  an 
involuntary  loss  of  possession  by  reason  of  the  hostile 
assertion  of  an  irresistible  paramount  title.  Nor  is  it 
necessary  that  the  paramount  title  should  have  been  es- 
tablished by  a  judgment  before  the  covenantee  will  be  a 
authorized  to  surrender  the  possession.  It  is  enough  that 
the  true  owner  asserts  his  title,  and  demands  the  posses- 
sion. If  it  is  his  right  to  have  possession,  it  certainly  is 
the  duty  of  the  covenantee  to  surrender  it  to  him.  The 
covenant  is  for  quiet  possession,  and  against  a  rightful 
eviction.  To  constitute  a  breach  of  this  covenant,,  it  can- 
not be  required  that  the  covenantee  should  maintain  a 
wrongful  possession,  and  subject  himself  to  be  treated  as 

^  Beebe  V.  Swartwout,  3  Gilm.  183;  Phelps  v.  Sawyer,  1  Aiken,  57; 
Rindskopf  v.  Farmers'  Loan  Co.,  58  Barb.  49;  Jenkins  d.  Hopkins,  8 
Pick.  350 ;  Moore  v.  Vail,  17  111.  185.  The  owner  of  wild  and  uncultivated 
lands  is  considered  in  possession,  on  the  ground  that  the  legal  seisin 
carries  with  it  the  possession,  provided  that  tiiey  are  not,  at  the  time, 
in  the  actual  adverse  possession  of  another:  Proprietors  of  Kennebeck 
V.  Call,  1  Mass.  484  ;  Bush  v.  Bradley,  4  Day,  30t>;  Van  Brunt  v,  Schenck, 
11  Johns.  385;  Mather  v.  Trinity  Church,  3  Serg.  &  K.  514;  8  Am.  Dec. 
663. 

»  Turner  v.  Goodrich,  26  Vt.  709;  Kansas  Pacific  Ry.  Co.  v.  Dunmeyer, 
24  Kan.  725 ;  White  v.  Whitney,  3  Met.  81 ;  Hprague  v.  r.aker,  17  Mass.  586; 
Bemis  v.  Smith,  10  Met.  194;  Stewart  v.  Drake,  4  Halst.  139;  Kstahrook 
V.  Smith,  6  Gray,  572;  66  Am.  Dec.  445;  Kelly  v.  Low,  18  Me.  244;  Cole 
V.  Lee,  30  Me.  392;  Haffey  v.  Birchetts.  U  Leigh,  88;  Claycomb  v.  Mun- 
ger,  51  111.  374;  Gunter  u.  Williams,  44  111.  572;  Whitney  v.  Dinsmore,  6 
Cush.  124. 


,^   1)28  COVENANTS.  1278 

a  trospassor.  The  object  of  a  suit  by  the  true  owner 
would  be  to  compel  the  covenantee  to  do  that  which  he 
ought  to  have  done  without  suit.  It  could  not  have  been 
contemplated  by  the  parties  to  the  covenant  that  the  cov- 
enantee should  refuse  to  do  what  the  law  enjoins  upon 
him  as  a  duty.  Nor  can  we  perceive  how  the  covenantor 
would  be  benefited  by  an  eviction  under  a  judgment.  It 
was  never  considered  necessary  that  the  covenantor  should 
have  notice  of  the  pendency  of  the  suit.  Tiie  judgment 
might  be  obtained  without  any  real  trial  of  the  merits  of 
the  title;  and,  besides,  in  the  action  upon  the  covenant, 
it  is  incumbent  upon  the  plaintiff'  to  establish  that  the 
title  to  which  he  has  submitted  is  a  paramount  title.  Al- 
though there  must  be  an  eviction,  it  is  not  necessary  that 
there  should  be  an  actual  dispossession  of  the  grantee. 
If  the  paramount  title  is  so  asserted  that  he  must  yield 
to  it  or  go  out,  the  covenantee  may  purchase  or  lease  of 
the  true  owner,  and  this  will  be  considered  a  sufficient 
eviction  to  constitute  a  breach.  He  then  no  longer  claims 
under  his  former  title.  So  far  as  that  title  is  concerned, 
he  has  been  evicted,  and  is  in  under  the  paramount 
title."  ^  A  mortgagee  threatened  to  sue  the  purchaser  of 
the  land,  whose  deed  contained  covenants  of  warranty  and 
quiet  enjoyment,  and  to  prevent  a  suit,  the  purchaser  paid 
the  amount  of  the  mortgage.  The  court  said:  "The  plain- 
tiff" has  been  disturbed  in  the  enjoyment  of  his  possession, 
and  he  has  been  compelled  to  purchase  in  another  title 
for  his  own  security,  which  v/e  think  very  clearly  has  been 
a  lawful  interruption,  and  a  breach  of  the  covenant  of 
quiet  enjoyment."^  This  is  believed  to  be  the  general 
rule  supported  by  the  weight  of  authority,  although  deci- 

1  In  McGary  v.  Hastings,  39  Oal.  360,  366,  2  Am.  Rep.  456,  citing  Sug- 
den  on  Vendors,  745,  and  note;  Lomis  v.  Bedell,  11  N.  H.  74;  Hamilton 
n  Cutts,  4  Mass.  349;  3  Am.  Dec.  222;  Turner  v.  Goodrich.  26  Vt.  709; 
Sprague  v.  Baker,  17  Mass.  586;  Rawle  on  Covenants,  278,  et  seq.,  and 
cases  cited;  Noonan  v.  Lee,  2  Black,  507;  Funs  v.  Cresswell,  5  ularke, 
86;  Brady  v.  Spurck,  27  111.  478;  Stewart  v.  Drake,  4  Halst.  139. 

'■*  Sprague  v.  Baker,  17  Mass.  590.  See,  also,  Harding  v.  Larkin,  41 
111.  422;  McOonnell  v.  Downs,  48  111.  271. 


1279  covE^cANTS.  §  928 

sions  may  be  found  which  countenance  or  uj)hold  a  differ- 
ent doctrine.^ 

1  Thus,  in  Waldron  v.  McCarty,  3  Johns.  471,  a  demurrer  was  inter- 
posed to  a  complaint  which  alleged  that  the  premises  were  encumbered 
with  a  mortgai^e  at  the  time  the  deed  to  plaintiff  was  executed ;  that 
attervvard  they  were  sold  under  a  decree  of  foreclosure  of  the  mortgage; 
and  the  plaintiff  had  boen  compelled  to  purchase  them  to  prevent  his 
ouster.  The  demurrer  was  sustained  on  the  ground,  as  stated  by  the 
court,  that  "  the  covenant  for  quiet  enjoyment  has  reference  merely  to 
the  undisturbed  possession,  and  not  to  the  grantor's  title."  The  court 
further  said  in  its  opinion,  per  Spencer,  J:  "From  precedents,  and  as 
no  authority  has  been  shown  that  the  covenant  for  quiet  enjovm-nt  is 
broken  by  any  other  acts  than  an  entry  and  eviction,  or  a  disturbance  of 
a  possession  itself,  we  are  of  opinion  that  the  demurrer  is  well  taken." 
See,  also,  Witty  i;.  Hightower,  12  Smedes  i  M.  47S;  Hannah  v.  Hender- 
son, 4  Ind.  174;  Reasoner  v.  Edmundson,  5  Ind.  393;  Burrus  v.  Wilkin- 
son. 81  Miss.  537;  Hunt  v.  Amidon,  1  Hill,  147. 

The  case  of  Waldron  v.  McCarty,  3  Johns.  471,  has  been  sevendy 
criticised.  In  McGary  v.  Hastings,  39  Cal.  360.  361;  2  Am.  Rep.  456,  it 
is  said :  "  The  principal  question  involved  in  this  appeal,  is  whether  the 
acts  set  out  in  the  complaint  constitute  a  breach  of  the  covenant  of  quiet 
enjoyment.  The  defendant  contends  that  there  must  have  been  an  actual 
eviction  by  a  title  paramount,  under  the  judgment  of  a  competent  court. 
Many  early  cases,  especially  in  the  State  of  New  York,  seem  to  sustain 
this  view,  and  two  cases  are  cited  from  our  own  reports.  The  first  is  the 
case  of  Fowler  v.  Smith,  2  Cal.  39.  That  was  an  attempt  to  resist  the 
payment  of  purchase  money  for  premises  conveyed,  without  special 
warranty,  prior  to  the  adojition  of  the  common  law  in  this  State,  and  it 
WHS  claimed  that  by  the  civil  law  certain  covenants  were  implied.  Justice 
Murray,  in  discussing  tiie  question,  said  tliat  no  covenants  were  inii)lied, 
ex'  ept  tiio?e  for  quiet  possession,  and  that  to  constitute  a  breach  of  tliat 
covenant,  there  must  bean  eviction  under  a  judgment  of  a  coiii|.etent 
court,  founded  upon  a  paramount  title.  He  relies  upon  the  c;ise  of 
Wa.dron  v.  McCarty,  3  Johns.  471.  In  that  case,  there  was  a  fonclosuro 
and  sale  of  the  premises,  under  a  mortgage  which  existed  at  the  time  of 
the  covenant.  The  covenantee  purchased  at  this  sale,  and  bi-ought  suit 
upon  h;s  covenant.  The  court  held  that  there  bad  been  no  eviction.  It 
was  not  neressary  in  that  case  to  hold  that  eviction  must,  in  all  cases, 
be  by  legal  pmcess.  This  is  a  leading  case  upon  that  side  of  the  ques- 
tion, and  was  followed  by  several  others  in  tiiat  Stale.  When  und.T- 
Btood,  however,  as  establishing  the  general  proposition  that  there  nuiHt 
be  an  actual  eviction  under  a  judgment,  these  cases  are  contrary  to  the 
more  recent  decisions  of  that  State,  as  we  shall  j-resently  show.  The 
other  cise  from  our  reports  is  Norton  v.  Jackson,  5  Cal.  2')2.  It  was  a 
suit  for  the  purchase  money,  and  was  resisted  on  the  groun.l  that  there 
had  been  a  breach  of  covenant  of  warranty,  which  for  all  the  purpoK>8 
of  this  case  is  identical  with  the  covenant  for  quiet  enjoyment.  The  i  ur- 
chaser  was  still  in  possession.  Mr.  Justice  Heydeufeldt,  in  delivering  the 


§   029  COVRNANTS.  1280 

§  029.  Rcflcmptioii  on  tax  sales. — In  a  case  in  New 
York,  a  deed  was  executed  for  certain  land,  with  a  cove- 
nant for  quiet  enjo3anent.  A  portion  of  it  had  been 
before  the  execution  of  the  deed  sold  for  unpaid  taxes. 

opinion  of  the  court,  says :  '  There  is  no  breach  of  the  covenant  without 
eviction,  because  there  would  be  no  correct  measure  of  damages.  It 
would  be  a  hardsliip  to  allow  the  purchaser  to  remain  in  possession,  and 
recover  the  purchase  money  also.'  In  this  case,  there  had  been  no  evic- 
tion, either  actual  or  constructive;  the  purchaser  was  still  in  possession 
under  the  title  of  his  covenantor,  and  no  question  can  be  raised  as  to  the 
correctness  of  the  decision.  The  broad  statement  in  the  conclusion  of 
the  opinion,  that  there  must  be  an  eviction,  by  process  of  law,  cannot  be 
sustained  by  authority,  either  in  this  country  or  in  England :  Copp  v. 
Wellburn,  2  Dev.  390 ;  Foster  v.  Pierson,  4  Lev.  617 ;  Stewart  v.  Drake, 
4  Halst.  141 ;  Kawle  on  Covenants,  242.  Indeed,  there  are  many  casea 
where  an  eviction  without  process  of  the  law  has  always  been  considered 
a  breach  of  the  covenant,  as  in  the  case  where  the  true  owner  at  common 
law  had  the  right  to  enter  without  suit,  and  where  the  covenantee  waa 
never  able  to  obtain  possession  of  the  granted  premises  which  were  in 
possession  of  the  owner  of  the  paramount  title.  The  case  of  Waidron  v. 
McCarty,  as  understood,  is  contrary  to  the  doctrine  laid  down  in  Green- 
vault  V.  Davis,  4  Hill,  643.  In  that  case  Mr.  Justice  Bronson  says: 
'  There  are  some  dicta  in  the  books  that  there  must  be  an  eviction  by 
process  of  law,  but  I  have  met  with  no  case  where  it  was  so  adjudged.* 
And  again :  '  Upon  principle,  I  can  see  no  reason  for  requiring  an  evic- 
tion by  legal  process.  Whenever  the  grantee  is  ousted  of  possession  by 
one  having  a  lawful  right  to  the  property  paramount  to  the  title  of  the 
grantor,  the  covenants  of  warranty  and  for  quiet  enjoyment  are  brokeni 

and  the  covenantee  may  sue When  the  grantee  surrenders  or 

suffers  the  possession  to  pass  from  him  without  a  legal  contest,  he  takes 
upon  himself  the  burden  of  showing  that  the  person  who  entered  had  a 
title  paramount  to  that  of  his  grantor.  But  there  is  no  reason  why  such 
surrender,  without  the  trouble  and  expense  of  a  lawsuit,  should  deprive 
him  of  a  remedy  on  the  covenant.  The  grantor  is  not  injured  by  such 
an  amicable  ouster.  On  the  contrary,  it  is  a  benefit  to  him,  for  he  thus 
saves  the  expenses  of  an  action  against  the  grantee  to  recover  the  pos- 
session. It  may  be  inferred  in  this  case  that  the  premises  were  unoccu- 
pied. Blodget  then  entered  and  still  holds  the  land.  This  was  an  ouster 
or  disseisin  of  the  plaintiff,  and  he  is  well  entitled  to  an  action  on  the 
defendant's  covenant.'  In  the  case  of  Fowler  v.  Poling,  6  Barb.  165, 
Mr.  Justice  Edmunds,  after  reviewing  the  decisions  iu  that  State,  says : 
'  From  these  conflicting  authorities,  I  deduce  the  true  rule  in  this  State 
to  be  that  there  must  be  an  actual  disturbance  of  the  possession ;  and 
where  the  covenantee  is  rightfully  out  of  possession,  either  by  due  pro- 
cess of  law,  or  by  an  entry  of  the  rightful  owner,  or  by  a  surrender  to 
one  having  a  paramount  title,  there  la  an  eviction,  the  covenant  is 
broken,  and  an  action  will  lie.'  " 

In  Brown  v.  Dickerson,  2  Jones,  372,  it  is  said  by  Burnside,  J :  "  The 


1281  COVEXANTS.  §  029 

On  the  last  day  for  the  redemption  of  tlie  land  the  pur- 
chaser paid  the  amount  of  taxes  and  accruing  costs.  The 
plaintiff  brought  an  action  on  his  covenant,  but  it  was 
held  that  in  the  absence  of  a  covenant  against  encum- 
brances the  plaintiff  could  not  acquire  a  claim  against  the 
defendant  by  making  a  voluntary  payment  without  the 
defendant's  request.^  "  The  plaintiffs'  covenant  for  quiet 
enjoyment,"  said  Greene,  J.,  "  has  never  been  broken,  for 

rule,  as  settled  in  Waldron  v.  McCarty,  3  Johns.  471,  has  not  met  the 
approbation  of  the  profession  in  many  States  of  this  Union.  It  is  too 
technical,  and  puts  a  grantee  to  unnecessary  expense  and  trouble,  and 
has  been  properly  overruled  in  many  of  the  courts." 

In  Loomis  v.  Bedel,  11  N.  H.  74,  the  opinion  was  delivered  by  Parker, 
C.  J.,  who  said:  "It  is  well  settled  that  an  entry  under  the  paramount 
title  amounts  to  a  breach  of  a  covenant  of  warranty ;  and  the  grantee 
may,  upon  demand,  surrender  the  land  to  a  claimant  having  a  good  title, 
and  resort  to  his  action :  Hamilton  v.  Cutts,  4  Mass.  349;  3  Am.  Dec.  222. 
But  in  Waldron  v.  McOarty,  3  Johns.  471,  w'here  there  was  an  outstand- 
ing mortgage  at  the  time  of  the  conveyance  to  the  plaintiff,  and  the 
premises  were  afterward  sold  upon  the  mortgage  in  pursuance  of  a  decree 
of  the  court  of  chancery,  and  purchased  by  the  plaintiff,  who  then 
brought  his  action  upon  the  covenant  of  warranty  in  his  deed,  the  court 
held  that  an  entry  and  expulsion  were  necessary,  and  that  there  was  no 
sufficient  eviction  or  disturbance  of  the  possession.     In  our  opinion,  this 
is  carrying  the  principle  too  far.     If  the  claimant  holding  the  paramount 
title  should  enter  upon  the  land,  and  the  grantee  should  thereupon  yield 
up  the  possession,  he  would  immediately  have  a  right  of  action  upon  the 
covenant  of  warranty  in  his  deed;  and  this  right  would  not  be  barred 
or  forfeited  should  he  forthwith  purchase  the  premises  from  the  claim- 
ant, to  whose  superior  title  he  has  thus  yielded  the  possesfsion.     He 
might,  on  such  repurchase,  immediately  re-enter  into  the  poHHcssion, 
and  still  maintain  his  action  on  the  covenant.     If,  instead  of  this  for- 
mality, he  yields  to  the  claims  of  a  paramount  title,  and  purchases  with- 
out an  actual  entry  of  the  claimant  under  it,  where  is  the  substantial 
difference?    For  all  practical  purposes  his  title  under  the  grant  to  which 
his  covenant  is  attached,  and  under  which  he  originally  entered,  is  as 
much  defeated  in  the  one  case  as  in  the  other.     He  is,  in  fact,  dispos- 
eessed,  so  far  as  tliat  title  is  concerned.     He  is  still  in  possession,  but  he 
is  sounder  another  title,  adverse  and  paramount  to  his  former  one;  and 
his  purchase  is,  therefore,  equivalent  to  an  entry  of  the  claimant.     It  is 
an  ouster  by  his  consent,  and  a  re-entry  by  himself  under  tiie  superior 
title  without  going  through  what  would   be,  at  beet,  a  mere  formality, 
wliere,  conscious  of  the  defect  of  the  title  under  which  he  originally  en- 
tered, he  chooses  to  yield  peaceably  to  the  assertion  of  a  better  title  and 
to  purchase  it." 

'  Mel  oy  V.  Lord,  19  Barb.  18. 
LiEEDs,  Vol.  1L  —  81 


§§  930, 931  COVENANTS.  1282 

the  reason  that  there  never  was  any  eviction And 

as  they  had  no  covenant  against  encumbrances,  they  had 
no  right  to  pay  them  voluntarily,  and  without  any  request 
on  the  part  of  the  defendant,  and  charge  liim  witli  such 
payment.  It  is  no  answer  to  say  that  it  would  be  a  hard- 
ship for  the  plaintiffs  to  be  compelled  to  wait  until  they 
were  evicted,  and  then  sue  for  the  purchase  money,  and 
lose  the  enhanced  value  of  the  land  and  improvements. 
But  for  the  covenant  for  quiet  enjoyment  they  could  not 
even  recover  the  purchase  money  in  a  case  free  from 
fraud;  and  if  they  desired  a  remedy  adequate  to  other 
contingencies  they  should  have  provided  for  it  by  appro- 
priate covenants."^  But  if,  by  statute,  one  form  of  cove- 
nant is  made  to  include  them  all,  the  grantee  may,  of 
course,  pay  off  a  tax  on  the  land,  and  recover  the  amount 
paid  on  his  covenant.^ 

§  930.  Covenant  for  further  assurance. — This  cove- 
nant which,  however,  is  seldom  used  in  the  United  States, 
is  defined  as  "  one  by  which  the  covenantor  undertakes  to 
do  such  reasonable  acts,  in  addition  to  those  already  per- 
formed, as  may  be  necessary  for  the  completion  of  the 
transfer  made,  or  intended  to  be  made,  at  the  requirement 
of  the  covenantee.  It  relates  both  to  the  title  of  the  vendor 
and  the  instrument  of  conveyance  to  the  vendee,  and 
operates  as  well  to  secure  the  performance  of  all  acts  for 
supplying  any  defects  in  the  former,  as  to  remove  all  ob- 
jections to  the  sufficiency  and  security  of  tlie  latter."^ 
The  acts  which  under  this  covenant  the  covenantor  will  be 
required  to  perform,  must  be  necessary  and  practicable.* 

§  931.  Covenant  of  warranty. — This  covenant,  which 
is  considered  the  broadest  and  most  effective,  and  is  the 
one  in  general  use,  is  equivalent  to  a  covenant  for  quiet 

^  McCoy  V.  Lord,  supra.    But  see  Hall  v.  Dean,  13  Johns.  105. 

="  Funk  V.  Cresswell,  5  Clarke,  91. 

'  Bouv.  Law  Diet.  tit.  Covenant  for  Further  Assurance;  Piatt  on 
Covenants,  341. 

*  Gwynn  v.  Thomas,  2  Gill  &  J.  420;  Warn  v.  Beckford,  7  Price,  550; 
Pet  and  Cally'a  case,  1  Leon.  304. 


1283  COVENANTS. 


§932 


enjoyment.''  It  is  "an  assurance  by  the  grantor  of  an 
estate  that  the  grantee  shall  enjoy  the  same  without  in- 
terruption by  virtue  of  paramount  title."-  The  cove- 
nant is  extinguished  by  a  reconveyance  to  the  grantor 
before  a  breach,  and  a  new  conveyance  will  not  revive  it 
in  the  absence  of  a  new  express  covenant.'  The  cove- 
nant does  not  extend  to  claims  which  possess  no  legal 
foundation.^  Where  a  deed  purports  to  convey  only  the 
right,  title,  and  interest  of  the  grantor,  the  scope  of  the 
covenant  of  warranty  may  be  limited  by  the  subject 
matter  of  the  conveyance.^  Laches  in  bringing  suit  does 
not  commence  until  the  party  has  been  damnified.® 

§  932.     Breacli    of    covenant    of   warranty.  —  As    the 

covenant  of  warranty  is  considered  tantamount  to  that 

^  Fowler  v.  Poling,  2  Barb.  303;  6  Barb.  16) ;  Emerson  v.  Proprietors, 
1  Mass.  464;  2  Am.  Dec.  34;  Bostwick  v.  Williams,  36  111.  70;  85  Am. 
Dec.  385;  Athens  v.  Nale,  25  111.  193;  Rea  v.  Minkler,  5  Lans.  196.  See 
AVilliams  r.  Wetherbee,  1  Aiken,  240;  Dobbins  v.  Brown,  2  Jones,  75; 
Ruisi;.  Steele,  40  Vt.  310.  This  section  was  cited  with  approval  in  Rey- 
nolds V.  Shaver,  59  Ark.  299;  43  Am.  St.  Rep.  36. 

^  Bouv.  Law  Diet.  tit.  Gov.  AVar.  See  .Moore  v.  Lanham,  3  Hill  fS.  C), 
304;  Rindskopf  v.  Farmers'  Loan  Co.,  58  Barb.  36;  Hull  v.  Hull,  35 
W.  Va.  155;  29  Am.  St.  Rep.  800;  13  S.  E.  Rep.  49;  Adams  v.  Ross,  30 
N.  J.  L.  510;  82  Am.  Dec.  237. 

»  Brown  v.  Metz,  3o  111.  339;  85  Am.  Dec.  277. 

*  Gleason  v.  Smith,  41  Vt.  296. 

'  Allen  v.  Holton,  20  Pick.  458;  Blanchard  v.  Brooks,  12  Pick.  47; 
Adams  v.  Ross,  1  Vroom,  510;  82  Am.  Dec.  237;  Raymond  v.  Raymond, 
10  Gush.  134;  Wight  v.  Shaw,  5  Gush.  56;  Sweet  v.  Brown,  12  Met.  175; 
45  Am.  Dec.  243;  Brown  v.  Jackson,  3  Wheat.  452;  Iloxie  v.  Fiiinoy,  16 
Gray,  332;  Van  Rensselaer  v.  Kearney,  11  How.  323;  McN'ear  r.  Mc- 
Comber,  18  Iowa,  12;  Merritt  v.  Harris,  102  Mass.  328;  Blodgott  v. 
llildreth,  103  Mass.  488;  Bates  v.  Foster,  59  Me.  157;  8  Am.  Rep.  1015. 
In  Bates  v.  Foster,  59  Me.  157,  8  Am.  Rep.  406,  the  holder  of  an  ciuity 
of  redemption  granted  to  him  by  another,  conveyed  the  estate  and  tiil« 
which  his  grantor  had  given  him,  by  metes  and  hounds,  with  covt-nants 
of  warranty.  It  was  held  that  his  covenant  did  not  warrant  title  against 
';he  mortgage.  In  a  case  where  property  was  conveyed  by  the  use  of 
;hc  words  "grant,  bargain,  and  sell,"  and  the  deed  contained  a  cove- 
nant "  to  warrant  and  defend  the  title  to  the  conveyed  preniiscs  against 
the  claim  of  every  person  whomsoever,"  it  was  iield  that  an  action  for 
breach  of  covenant  would  not  lie  because  of  the  existence  of  an  outstand- 
ing deed  of  trust  on  tlie  land:  Koenig  v.  Branson,  73  Mo.  634. 

«  Post  V.  Gan)i)au,  42  Mich.  90. 


§  932  COVEN- ANTS.  1284 

for  quiet  enjoyment,  what  is  a  breach  of  the  latter  is  also 
a  breach  of  the  former,  and  therefore  something  equiva- 
lent to  an  eviction  must  occur  to  operate  as  a  breach  of 
this  covenant.^  Tlie  effect  of  full  covenants  of  warranty- 
is  not  to  be  limited  by  a  subsequent  clause  of  ambiguous 
signification,  and  which  may  be  construed  as  an  affirma- 
tion of  the  previous  recitals.^  The  covenant,  however, 
is  not  broken  by  the  act  of  a  mere  stranger  having  no  valid 
title,  though  he  may  pretend  to  have  one.^  But  the  exist- 
ence of  a  public  or  private  way,*  or  the  right  to  use  a  wall 
situated  on  the  premises  for  a  party  wall,  are  breaches  of 
the  covenant.^  And,  generally,  what  in  the  case  of  a  cove- 
nant for  quiet  enjoyment  is  considered  an  eviction,  is 
deemed  such  under  a  covenant  of  warranty.  If  a  deed 
contains  a  covenant  of  general  warranty,  and  at  the  time 
it  is  made  another  has  actual  possession  of  the  premises, 
holding  them  by  a  paramount  title,  an  eviction  occurs 

1  Scott  V.  Kirkendall,  88  111.  465;  30  Am.  Rep.  562;  Townsend  v. 
Morris,  6  Cowen,  126;  Caldwell  v.  Kirkpatrick,  6  Ala.  60;  41  Am.  Dec. 
36.     See  Green  v.  Collins,  20  Hun,  474. 

«  Locke  V.  White,  89  Ind.  492. 

*  Hannah  V.  Henderson,  4  Ind.  174;  HaXev.  New  Orleans,  13  La.  Ann. 
499;  Loughran  v.  Ross,  45  N.  Y.  792;  6  Am.  Rep.  173.  See  Kincaid  v. 
Bribtain,  5  Sneed,  124;  Norton  v.  Jackson,  5  Cal.  262;  Gleason  v.  Smith, 
41  Vt.  293. 

*  Butt  V.  Riffe,  78  Ky.  352;  Russ  v.  Steele,  40  Vt.  310;  Haynes  v. 
Young.  36  Me.  561 ;  Harlow  v.  Thomas,  15  Pick.  66, 

*  Lamb  v.  Danforth,  59  Me.  324;  8  Am.  Rep.  426.  See  Hendricks  v. 
Stark,  37  N.  Y.  106;  93  Am.  Dec.  549.  The  right  in  another  to  draw 
water  from  the  premises  is  a  breach :  Day  v.  Adams,  42  Vt.  510;  Clark 
V.  Conroe,  38  Vt.  469.  So  is  suffering  taxes  to  remain  unpaid  :  Rinehart 
V.  Rinehart,  91  Ind.  89.  Where  a  deed  purports  to  convey  only  the 
right,  title,  and  interest  of  the  grantor,  a  general  covenant  will  not  en- 
large the  conveyance:  Young  v.  Clippinger,  14  Kan.  148;  Gee  v.  Moore, 
12  Cal.  472;  Sweet  v.  Brown,  12  Met.  175;  45  Am.  Dec.  243;  Locke  i;. 
W^hite,  89  In(L  492;  Habig  v.  Dodge,  127  Ind.  31;  25  N.  E.  Rep.  182  r 
Bryan  v.  Utland,  101  Ind.  477;  Reynolds  v.  Shaver,  59  Ark.  299;  43  Am. 
St.  Rep.  36;  Hanrick  v.  Patrick,  119  U.  S.  156;  Bates  v.  Foster,  59  Me. 
157;  8  Am.  Rep.  406;  Kimball  v.  Semple,  25  Cal.  440;  McNear  v.  Mc- 
Comber,  18  Iowa,  12;  McDonough  v.  Martin,  88  Ga.  675;  Bowen  v. 
Thrall,  28  Vt.  382;  Cummings  v.  Dearborn,  56  Vt.  441 ;  Marsh  v.  Fish, 
66  Vt.  213;  Stockwell  t;.  Couillard,  129  Mass.  231;  Allen  v.  Helton,  20 
Pick.  458. 


1285 


COVENANTS.  8  933 


eo  instanti,  and  an  action  can  be  immediately  commenced.^ 
If  a  person  executes  a  deed  with  a  covenant  of  warranty, 
and  the  deed  under  which  he  holds  contains  a  condition 
against  the  erection  of  buildings  on  a  portion  of  the  land, 
there  is  a  breach  of  the  covenant.^  A  grantee  who  has 
become  the  purchaser  of  an  existing  mortgage  is  not 
compelled  to  foreclose  the  mortgage  for  his  protection, 
but  may  recover  on  his  covenants  of  warranty,^ 

§  933.  Rig^ht  of  joint  possession. — A  person  suing 
upon  a  covenant  of  w'arranty  must  of  course  have  an 
interest  which  has  been  injured  or  disturbed.  But  where 
a  deed  contains  a  proviso  that  the  right  of  possession 
shall  be  reserved  to  the  mother  and  sister  of  the  grantee 
as  well  as  to  himself,  for  use  as  a  homestead  until  he 
arrives  at  majority,  he  has  such  an  interest  as  entitles 
him  to  sue  upon  the  covenant  for  a  breach.* 

>  Rex  V.  Creel,  22  W.  Va.  373.  But  otherwise  where  the  holder  of 
the  paramount  title  is  not  in  possession  of  the  land  nor  positively  assert- 
ing title  against  the  grantee:  Jones  v.  Paul,  59  Tex.  41. 

*  Kramer  v.  Carter,  136  Mass.  504.  Where  the  premises  conveyed 
were  not  described  as  a  millsite,  but  a  waterpower  and  flouring-mill 
were  situated  on  them,  the  exercise  subsequently  by  an  adjoining  owner 
of  a  right  possessed  by  him  to  raise  the  dam,  thus  throwing  the  water 
back,  injuring  the  buildings  and  overflowing  the  land,  constitutes  a 
breach :  Scriver  v.  Smith,  30  Hun,  129. 

*  Rover  v.  Foster,  62  Iowa,  321. 

*  Mason  v.  Kellogg,  38  Mich.  132.  Said  Graves,  J.,  in  delivering  the 
opinion  of  the  court:  "The  grantors  <lo  not  appear  to  have  retained  any- 
thing. The  grant  was  to  the  plaintiff,  in  fee,  with  a  qualified  use  to  him 
and  his  mother  and  sister  for  a  term  limited  to  a  few  months,  and  which 
might  be  cut  short  by  the  occurrence  of  bis  mother's  death  sooner.  Let 
it  be  admitted  that  plaintiff  and  his  mother  and  sister  were  vested  with 
a  right  to  the  land  itselt  under  this  clause:  Shep.  Touch.  93;  Co.  Litt.  4  6; 
Green  v.  Biddle,  8  Wheat.  1,  76.  Let  it  bo  conceded  that  in  virtue  of 
being  entitled  to  the  described  special  kind  of  use  and  enjoyment  for  tho 
time  limited,  they  were  by  force  of  llie  deed  and  tlie  statute  (C'omp. 
Laws,  ^§  4116,  4118)  vested  for  such  time  with  a  h-gal  estate  of  tlie  sumo 
quality  and  duration,  and  subject  to  the  same  conditions  as  tiie  benc- 
licial  interest  as  meant  by  the  grantor;  and  still  the  phiintiff  \uu\  all  tlio 
estate  and  right  not  embraced  by  the  clause  in  ctueHtion,  and  iikewimi 
the  right  under  that  clause  to  present  poHsession  an<l  enjoyment  in  com- 
mon with  his  mother  and  sister.  His  interest  was  severable  from  theirs. 
It  was  mucii  more  extensive.     It  covered  everything  except  the  trilling 


§  934  COVENANTS.  1286 

§  1>34.  Damages  for  breach  of  covenants  of  quiet  en- 
joyment and  of  warranty. — 111  some  of  the  States  the 
measure  of  damages  for  a  breach  of  these  covenants  is 
the  vakie  of  the  land  at  the  time  of  injury  by  defect  of 
title  and  eviction.^  But  the  general  rule  now  is  that  the 
damages  for  a  breach  of  these  covenants  are  measured  by 
the  consideration,  or  what  the  land  was  worth  as  deter- 
mined b}'  the  parties  or  by  the  consideration  price,  to- 
gether with  interest  for  the  time  the  purchaser  has  lost  the 
mesne  profits,  and  also  the  costs  and  expenses  incurred  by 
the  covenantee  in  defending  the  suit  to  evict  him.^     For 

matter  of  their  right  to  use  ami  enjoy  with  him  in  the  special  mode 
limited  up  to  August  9, 1876.  That  he  had  an  interest  and  present  right 
capable  of  being  so  disturbed  and  infringed  as  to  give  him  an  immediate 
right  of  action  upon  the  covenant  cannot  be  doubted,  and  the  nature  of 
his  right  and  interest  entitled  him  to  sue  alone:  Rawle  on  Gov.  599 ; 
Barbour  on  Parties,  33." 

'  Park  V.  Bates,  12  Vt.  381 ;  36  Am.  Dec.  347 ;  Keeler  v.  Wood,  30  Vt. 
242;  Keith  v.  Day,  15  Vt.  660;  Dniry  v.  Shumway,  Chip.  D.  Ill ;  1  Am. 
Dec.  704;  Sterling  v.  Peet,  14  Conn.  245;  Horsford  v.  Wright,  Kirby,  3; 

I  Am.  Dec.  8;  Sweet  v.  Patriclt,  12  Me.  9;  Doherty  v.  Dolan,  65  Me.  87; 
20  Am.  Rep.  677;  Cusliman  v.  Blanchard,  2  Greenl.  268;  11  Am.  Dec. 
76;  Hardy  v.  Nelson,  27  Me.  525;  Elder  v.  True,  30  Me.  104;  Caswell  v. 
Wendell,  4  Mass.  108;  Norton  v.  Babcock,  2  Met.  516;  White  v.  Whit- 
ney, 3  Met.  81;  Gore  v.  Brazier,  3  Mass.  523;  3  Am.  Dec.  182;  Bigelow 
V.  Jones,  4  Mass.  512.  And  see,  also,  where  once  recognized.  Nelson  v. 
Matthews,  2  Hen.  &  M.  164;  3  Am.  Dec.  620;  Witherspoon  v.  McCalla, 
3  Desaus.  Eq.  245;  Liber  v.  Parsons,  1  Bay,  19;  Mills  v.  Bell,  3  Call,  277; 
Guerard  v.  Rivers,  1  Bay,  265;  Erebright  i;.  Still,  1  Bay,  92. 

»  McGary  v.  Hastings,  39  Cal.  360;  2  Am.  Rep.  456;  Tong  v.  Mat- 
thews, 23  Mo.  437;  McClure  v.  Gamble,  27  Pa.  St.  288;  Drew  v.  Towle, 
SON.  H.  531;  64  Am,  Dec.  309;  Brown  v.  Dickerson,  12  Pa.  St.  372; 
Cathcartv.  Bowman,  5  Pa.  St.  317;  Coxu.  Henry,  32  Pa.  St.  18;  William- 
eon  V.  Test,  24  Iowa,  138;  Hallam  v.  Todhunter,  24  Iowa,  166;  Elliott  v. 
Thompson,  4  Humph.  99;  40  Am.  Dec.  630;  Dalton  v.  Bowker,  8  Nev. 
190;  Phillips  v.  Reichert,  17  Ind.  120;  79  Am.  Dec.  463;  Clark  v.  Burr, 
14  Ohio,  188;  Harding  v.  Larkin,  41  111.  413;  Whitlock  v.  Crew,  28  Ga. 
289;  Marshall  «.  McConnell,  1  Litt.  419;  Cummins  v.  Kennedy,  3  Litt. 
118  ;  14  Am.  Dec.  45 ;  Lloyd  v.  Quinby,  5  Ohio  St.  262 ;  Wade  v.  Comstock, 

II  Ohio  St.  71 ;  Swafford  v.  Whipple,  3  Greene,  G.  261 ;  54  Am.  Dec.  498 ; 
Gridley  v.  Tucker,  Freem.  Ch.  2j9;  Pence  v.  Duvall,9Mon.  B.48;  Rob- 
ertson V.  Lemon,  2  Bush,  301;  Davis  v.  Smith,  5  Ga.  274;  47  Am.  Dec. 
279;  Wood  v.  Kingston  Coal  Co.,  48  111.  356;  95  Am.  Dec.  554;  Bond  v. 
Quattlebaum,  1  McCord,  584;  10  Am.  Dec.  702;  Cox's  Heirs  v.  Strode, 
2  Bibb,  277;  5  Am.  Dec.  603;  Booker  v.  Bill,  3  Bibb,  173;  6  Am.  Dec. 
641;  Davis  v.  Hall,  2  Bibb,  590;  Robarda  v.  Netherland,  3  Bibb,  529; 


1287  COVENANTS.,  §  934 

a  partial  breach  damages  are  recoverable,  according  to  the 
same  rule,  in  proportion  to  the  extent  of  the  breach.^  If 
the  eviction  is  by  a  paramount  lien,  damages  may  be  re- 
covered to  the  extent  of  the  lien,  if  this  does  not  exceed  the 
amount  that  could  be  recovered  for  an  eviction  for  failure 
of  title.^  If  the  adverse  title  has  been  extinguished,  the 
covenantee  may  recover  what  he  has  paid  therefor,  with  a 
fair  remuneration  for  his  trouble,  and  he  will  also  be 
allowed  the  reasonable  incidental  expenses.     But  the  total 

Holmes  v.  Senneckson,  15  N.  J.  L.  313;  Pearson  v.  Davis,  1  McMull.  37; 
Grist  V.  Hodges,  3  Dev.  198;  Bennett  v.  Jenkins,  13  Johns.  50;  Burton 
V.  Reeds,  20  Ind.  87;  Cincinnati  etc.  R.  R.  Co.  v.  Pearce,  28  Ind.  502; 
Threkheld  v.  Fitzhugh,  2  Lei>.'h,  451;  Jackson  v.  Turner,  5  Leigh,  127; 
Foster  v.  Thompson,  41  N.  H.373;  ^Yallace  y.  Talbot,  1  McCord,  466;  Tal- 
bot V.  Bedford,  Cooke,  447 ;  Lowther  v.  Commonwealth,  1  Hen.  &  M.  202; 
Ear.e  v.  Middleton,  1  Cheves,  127;  Crenshaw  v.  Smith,  5  Munf.  415; 
McMillan  v.  Ritchie,  3  Mon.  348;  16  Am.  Dec.  107;  Kennedy  v.  Davis, 
7  Mon.  76;  Hanson  v.  Buckner,  4  Dana,  251;  29  Am.  Dec.  401;  Morris 
V.  Rowan,  17  N.  J.  L.  304;  Taylor  v.  Holton,  1  Mont.  688;  Stebbins  v. 
"VVolf,  33  Kan.  765;  Rogers  v.  Golson  (Tex.  Civ.  App.),  31  S.  W.  Rep- 
200;  Sheffey  v.  Gardiner,  79  Va.  313;  Barnett  y.  Hughey,  54  Ark.  195; 
15  S.  W.  Rep.  464;  Taylor  v.  Wallace,  20  Colo.  211;  37  Pac.  Rep.  693; 
Rhea  v.  Swain,  122  Ind.  272;  Bellows  t;.  Litchfield,  83  Iowa,  36;  48  N.  W. 
Rep.  1062 ;  Boyers  v.  Amet,  41  La.  Ann.  721 :  6  So.  Rep.  734 ;  Cook  v.  Cur- 
tis, 68  Mich.  611;  Devine  v.  Lewis,  38  Minn.  24;  35  N.  W.  Rep.  711; 
Matheny  v.  Stewart,  108  Mo.  73;  17  S.  W.  Rep.  1014 ;  Hoffman  v.  Bosch, 
18Nev.  360;  4  Pac.  Rep.  703;  Taylor  v.  Holter,  1  Mont.  688;  Winni- 
piseogee  Paper  Co.  v.  Eaton,  65  N.  H.  13;  18  Atl.  Rep.  171;  Ramsey  t>. 
Wallace,  100  N.  0.  75;  6  S.  E.  Rep.  638;  Rash  v.  Jenne,  26  Or.  169;  37 
Pac.  Rep.  538;  Thiele  v.  Axell,  5  Tex.  Civ.  App.  548. 

1  Mayor  v.  Donnovant,  25  Id.  262;  Griffin  v.  Reynolds,  17  How.  609; 
Donsherty  v.  Duvall's  Heirs,  9  Mon.  B.  57;  Raines  v.  Calloway,  27  Tex. 
678;  Boyle  v,  Edwards,  114  Mass.  373;  Dickins  v.  Sheppard,  3  Murpli. 

526;  Morris  v.  Harris,  9  Gill.  19;  Huntv.  Orwig,  17  Mon.  B.73;  66  Am. 

Dec.  144;  Dimmick  v.  Lockwood,  10  Wend.  142;  Williams  v.  Beeman,  2 

Dev.  483;  Hoot  v.  Spade,  20  Ired.  326. 

«  Tufts  V.Adams,  8  Pick.  547;  Donohoe  v.   Emei;y,  9  Met.  63;  White 

V.  Whitney,  3  Met.  81;  Furnas  v.  Durgin,  119  Mass.   5(X);  20  Am.  Kep. 

341 ;  Holbrook  v.  Weatherbee,  12  Me.  502;  Winalow  v.  McCall,  32  Barb. 

241.'    And  836,  also,  Norton  v.  Fabcock,  2  Met.  510;  Stewart  v.  Drake,  9 

N.  J.L.  139;  Elder  v.   True,  32  Me.    104;  Chapel  v.  Bull,  17  Mass.  213; 

Copeland   v.  Copeland,  30  Me.  446;  Harper  v.   Jeffries.  5  Whart.  26; 

Lloyd   V.  Quinby,  5  Ohio  St.  262;  Burk  v.  Clements,  10  Ind.  132;  Pitt^ 

man  v.  Connor,  27  Ind.  337;  Miller  v.  Halsey,  14  N.  J.  L.  48;  McCiinnis 

V.   Noble,  7  Watts  &  S.  454;  Mellon's  Appeal,  32  Pa.  St.  121;  Blood  v. 

Wilkins,  43  Iowa,  565;  Smith  v.  Dixon,  27  Ohio  St.  471. 


§  035  COVENANTS.  1288 

amount  cannot  exceeJ  what  he  could  recover  on  a  total 
loss  of  title.^  The  covenantee  can  have  but  one  satisfac- 
tion, although  he  may  sue  the  first  or  any  succeeding  co- 
venantor.' An  intermediate  grantee  who  has  conveyed 
the  land  may,  in  case  of  damage,  maintain  an  action 
against  a  remote  grantor.^ 

§  935,  Notice  to  the  covenantor  of  suit. — If  an  action 
is  brought  by  a  person  claiming  a  paramount  title  to  re- 
cover the  premises  from  the  covenantee,  the  latter,  by 
giving  notice  to  the  covenantor  of  such  suit,  and  request- 

'  Swett  w.  Patrick,  12  Me.  9;  Bailey  v.  Scott,  13  Wis.  619;  Lane  u. 
Fury,  31  Ohio  St.  574;  McGary  v.  Hastings,  39  Cal.  360;  2  Am.  Rep.  456; 
Leffingwell  v.  Elliott,  10  Pick.  204;  8  Pick.  457;  19  Am.  Dec.  343; 
Loomis  w.  Bedel,  11  N.  H.  74;  Dale  v.  Shively,  8  Kan.  276;  Jones  v. 
Lightfoot,  10  Ala.  17;  Thayer  v.  Clemence,  22  Pick.  490;  Esta brook  v. 
Smith,  6  Gray,  572;  66  Am.  Dec.  445;  Yokum  v.  Thomas,  15  Iowa,  67; 
Richards  v.  Iowa  Homestead  Co.,  44  Iowa,  304;  24  Am.  Rep.  745;  Clay- 
comb  r.  Hunger,  51  111.  373;  Fawcett  v.  Woods,  5  Iowa,  400;  Spring  v. 
Chase,  22  Me.  505 ;  39  Am.  Dec.  595;  Kelly  v.  Low,  18  Me.  244;  Allis  w. 
Nininger,  25  Minn.  525;  Hurd  v.  Hall,  12  Wis.  112;  Lewis  v.  Harris,  31 
Ala.  689;  Lane  v.  Desire,  23  Mo.  151 ;  McKee  v.  Bain,  11  Kan.  569.  And 
see  Martin  v.  Atkinson,  7  Ga.  228;  50  Am.  Dec.  403;  Ferris  v.  Mosher, 
27  Vt.  218;  65  Am.  Dec.  192;  Baxter  v.  Ryerss,  13  Barb.  267. 

*  Crooker  v.  Jewell,  29  Me.  527;  Birney  v.  Hann,  3  Marsh.  A.  K.  322; 
13  Am.  Dec.  167;  Lowe  v.  McDonald,  3  Marsh.  A  K.  354;  13  Am.  Dec. 
181 ;  Wilson  v.  Taylor,  9  Ohio  St.  595 ;  75  Am.  Dec.  488 ;  King  v.  Kerr,  5 
Ohio,  154;  22  Am.  Dec.  777;  Crisfield  v.  Storr,  36  Me.  129;  Withy  v. 
Mumford,  5Cowen,  137;  Lot  v.  Parish,  1  Litt.  393;  Williams  v.  Bee- 
man,  2  Dev.  483;  Hunt  v.  Orwig,  17  Mon.  B.  73;  66  Am.  Dec.  144;  Clay- 
comb  ?;.  Munger,  51  111.373;  Suydam  v.  Jones,  10  Wend.  180;  25  Am. 
Dec.  552;  Thompson  v.  Sanders,  5  Mon.  58;  Williams  v.  Beeman,  2  Dev. 
483. 

'  Birney  v.  Hann,  3  Marsh.  A.  K.  322;  13  Am.  Dec.  167.  "As  the 
indorser  of  a  commercial  instrument,"  said  Mills,  J.,  "  who  has  paid  its 
contents  can  sustain  his  action  against  his  remote  indorser  without  a 
reindorsement,  beca^fse  his  indorsement,  by  the  act  of  payment,  per  se, 
has  become  fundus  officio  as  to  him,  so  ought  Hann,  who  has  rendered 
his  own  deed  inoperative  further  against  him,  to  be  restored  to  the  situ- 
ation he  was  in  before  it  was  made,  without  a  conveyance  formally  exe- 
cuted." And  see,  also,  Wheeler  v.  Sohier,  3  Cush.  219;  Claycomb  v. 
Hunger,  51  111.  373;  Herrin  v.  McEntyre,  1  Hawks,  410;  Thompson  v. 
Sanders,  5  Hon.  357;  Lot  v.  Parish,  1  Litt.  393;  Baxter  v.  Ryerss,  13 
Barb.  267;  Booth  v.  Starr,  1  Conn.  244;  6  Am.  Dec.  233;  Red  wine  v. 
Brown,  10  Ga.  311;  Withy  w.  Humford,  5  Cow.  137;  Harkland  v.  Crump, 
1  Dev.  &  B.  94;  27  Am.  Dec.  230;  Thompson  v.  Shattuck,  2  Met.  618. 


1289  COVENANTS.  §  935 

ing  him  to  undertake  its  defense,  may  liberate  himself 
from  the  necessity  of  proving,  in  case  the  claimant  of  the 
paramount  title  is  successful,  the  validity  of  such  title, 
when  suing  upon  his  covenant.^  If  the  grantor  himself 
defended  the  suit,  it  is  no  defense  that  the  defendant  in 
the  ejectment  suit  was  not  in  possession.^  When  proper 
notice  has  been  given,  and  suit  is  brought  by  the  cov- 
enantee against  his  covenantor,  the  latter,  in  the  absence 
of  fraud  or  collusion,  will  not  be  permitted  to  make  the 
issue  that  the  recovery  against  the  former  was  not  obtained 
by  virtue  of  a  paramount  title.^  But  this  rule,  it  seems, 
does  not  prevail  in  North  Carolina.*  If  the  covenantee 
is  compelled  to  bring  suit,  in  the  first  instance,  to  acquire 
possession  of  the  premises,  it  is  generally  held,  that  if  he 
gives  notice  to  the  covenantor  to  prosecute  the  suit,  the 
judgment  will  be  conclusive  upon  hira.^  But  in  Tennes- 
see, a  different  conclusion  was  reached  by  tlie  court,  on 

»  Greenlaw  v.  Williams,  2  Lea  (Tenn.),  533 ;  Park  v.  Bates,  12  Vt.  381 ; 
36  Am.  Dec.  347 ;  Swenk  v.  Stout,  2  Yeates,  470 ;  Hinds  v.  Allen,  34  Conn. 
195;  Bender  v.  Fromberger,  4  Dall.  436;  Wimberly  v.  Collier,  32  Ga.  13; 
Leather  v.  Poulteny,  4  Binn.  356;  Williams  r.  Wetherbee,  2  Aikens,  307; 
CoUingwood  v.  Irwin,  3  Watts,  310;  Mooney  v.  Burchard,  84  Ind.  285; 
Ives  V.  Niles,  5  Ind.  323;  King  v.  Kerr,  5  Ohio,  158;  22  Am.  Dec.  777; 
City  of  St.  Louis  v.  Bissell,  46  Mo.  157 ;  Morgan  v.  Muldoon,  82  Ind.  347 ; 
Paul  V.  Witman,  3  Watts  &  S.  409;  Wendel  i-.  North,  24  Wis.  223;  Som- 
ers  V.  Schmidt,  24  Wis.  419;  1  Am.  Rep.  191;  Jones  v.  Wliitsett,  79  Mo. 
188;  Middleton  v.  Thompson,  1  Spear,  67;  Pitkin  v.  Leavitt,  13  Vt.  ;'.79; 
Brown  v.  Taylor,  13  Vt.  631;  37  Am.  Dec.  618;  Turner  v.  Goodrich,  26 
Vt.  708;  Cooper  v.  Watson,  10  Wend.  205;  Chapman  '■.  Ilolmt'S.  5  Halst. 
20;  Booker  v.  Bell,  3  Bibb,  173;  6  Am.  Dec.  641;  Prewit  v.  Kenton,  3 
Bibb,  282;  Cox  v.  Strode,  4  Bibb,  4;  Miner  v.  Clark,  15  Wend.  427  ;  Morris 
V.  Rowan,  2  liar.  (N.  J.)  307;  Kelly  v.  The  Dutch  Church,  2  Mill,  105; 
Wilson  V.  McElwee,  1  Strob.  65;  Jones  v.  Waggoner,  7  Marsh.  J.  J.  144; 
Davis  V.  Wilbourne,  1  Hill  (S.  C),  28;  26  Am.  Dec.  154;  Boyd  >:  Whit- 
field, 19  Ark.  469;  Graham  v.  Tanker;^ley,  15  Ala.  634.  See  Cumminga 
V.  Harrison,  57  Miss.  275;  Walton  v.  Cox,  67  Ind.  164. 

2  Jones  V.  Whitsell,  79  Mo.  188. 

»  McConnel  v.  Downs,  48  111.  271;  Sisk  v.  Woodruff,  15  111.  15. 

*  Martin  v.  Cowles,  2  Dev.  tt  B.  101 ;  Wilder  »•.  Ireland.  8  Jones  (N.  C), 
88;  Shober  v.  Robinson,  2  Murph.  33;  Saunders  r.  Hamilton,  2  Hayw. 
(N.  C.)  282. 

"  Pitkin  V.  Leavitt,  13  Vt.  379;  Brown  v.  Taylor,  13  Vt.  631  ;  37  Am. 
Dec.  618;  White  v.  Williams,  13  Tex.  258;  (iragi;  v.  Riciiardson.  25  Ga. 
570;  71  Am.  Dec.  190;  Park  v.  Bates,  12  Vt.  381 ;  36  Am.  Dec.  347. 


§§  936, 937  COVENANTS.  1290 

the  ground  that  the  law  only  authorized  the  making  the 
covenantor  a  defendant,  and  not  a  plaintiff/  The  notice 
may  be  by  parol.^  But  mere  knowledge  derived  from 
third  persons,  as  distinguished  from  notice,  is  not  suffi- 
cient.^ The  notice  should  be  certain,  explicit,  and  un- 
equivocal/ 

§  936.  Comments.  —  Although  it  seems  that  a  parol 
notice  is  sufficient,  yet  as  a  matter  of  practice,  it  is  obvious 
that  it  is  better  always  to  give  it  in  writing.  The  notice 
must  be  direct  and  certain,  and  after  the  lapse  of  a  con- 
siderable period  of  time  it  would,  considering  the  infirm- 
ity of  human  memory,  be  almost  impossible  to  remember 
the  exact  language  in  which  the  notice  was  given.  The 
notice  given  to  the  covenantor  should  be  considered  as  a 
notice  in  a  legal  proceeding,  and  ought  on  general  princi- 
ples to  be  couched  in  writing.  Mr.  Justice  Bronson  has 
aptly  said,  in  a  dissenting  opinion,  after  referring  to  the 
practice  under  the  old  system  of  voucher  by  a  writ  of  sum- 
mons, where  the  right  could  only  be  exercised  by  means 
of  a  writ  served  by  an  officer,  "  he  ought  not,  in  the  other, 
to  be  prejudiced  by  anything  less  definite  and  formal  than 
a  writing  which  will  advise  him  of  what  has  been  done, 
and  what  he  is  required  to  do."  ^  And  probably  now  under 
statutory  provisions  requiring  notices  in  legal  proceedings 
to  be  in  writing,  a  written  notice  would  be  necessary. 

§  937.     Where  no  notice  is  given  to  the  covenantor. — 

There  has  has  been  some  discussion,  resulting  in  a  vari- 
ance of   opinion,  as  to  what  effect  a  judgment  possesses, 

1  Ferrell  v.  Alder,  8  Humph.  44. 

*  Miner  v.  Clark,  15  Wend.  427.  But  see  Maaon  v.  Kellogg,  38  Mich. 
132. 

3  Somers  v.  Schmidt,  24  Wis.  417;  1  Am.  Rep.  191 ;  Collins  v.  Baker, 
6  Mo.  App.  588. 

*  Paul  V.  Witman,  3  Watts  &  S.  410;  Boyd  v.  WhitBeld,  19  Ark.  470; 
Collins  V.  Baker,  6  Mo.  App.  588.  It  is  for  the  jury  to  decide  whether 
the  notice  was  received  or  not :  Collingwood  v.  Irwin,  3  Watts,  310.  But 
whether  it  was  a  proper  notice  as  to  time  is  a  question  for  the  court: 
Davis  V.  Wilbourne,  1  Hill  (S.  C),  28;  26  Am.  Dec.  154. 

^  Miner  v.  Clark,  15  Wend.  427. 


1201  COVENANTS.  §  937 

when  the  covenantor  had  not  been  notified  of  the  suit, 
and  was  not  requested  to  defend.  Of  course,  such  a  judg- 
ment cannot  bind  the  covenantor.  The  only  question  that 
can  arise  is  one  of  evidence.  It  has  been  asserted  that, 
although  the  defendant  might  inquire  into  the  merits  of 
the  judgment,  yet  it  was  prima  facie  evidence  of  the  ex- 
istence of  a  paramount  title.^  But  the  more  reasonable 
rule,  and  the  one  sustained  by  authority,  is  that  the  judg- 
ment, where  no  notice  has  been  given,  and  the  covenantor 
is  not  a  party  to  the  suit,  is  not  even  prima  facie  evidence 
that  the  eviction  was  founded  upon  an  adverse  and  para- 
mount title.''  "It  is  a  familiar  principle  of  law  that  a 
man  shall  not  be  bound  by  a  judgment  pronounced  in  a 
proceeding  to  which  he  is  not  a  party,  actually  or  con- 
structively. He  should  be  allowed  to  appear  in  the  case, 
and  adduce  evidence  in  support  of  his  riglits  before  he  is 
concluded  by  the  judgment.  If  a  warrantor  has  no  no- 
tice of  the  action  against  his  grantee,  and  no  opportunity 
of  showing  therein  that  he  transferred  a  good  title,  he  can- 
not, in  any  sense,  be  considered  a  party  to  the  action,  and 
therefore  ought  not  to  be  bound  by  any  adjudication  of 
the  question  of  title.  But,  if  he  has  notice,  he  may  become 
a  party  to  the  suit,  and  it  is  his  own  fault  if  his  title  is  not 
fully  presented  and  investigated.  lie  then  has  an  opportu- 
nity of  sustaining  the  title  he  has  warranted,  and  defeating 
a  recovery  by  the  plaintiff  in  ejectment.  If  he  fails  to  do 
this  successfully,  he  is  concluded  from  afterward  assort- 
ing the  superiority  of  that  title,  and  comi.elled  to  refund 
the  purchase  money,  with  interest.  By  giving  tlie  war- 
rantor notice,  the  defendant  in  ejectment  may  relievo 
himself  from  the  burden  of  afterward  proving  the  validity 
of  the  title  under  which  he  is  evicted.  But,  if  he  neglects 
to  give  the  notice,  he  must  come  prepared  to  prove,  on 

'  Collinjrwood  v.  Irwin,  3  Watts,  310;  Pitkina  v.  Loavitt,  13  Vt.  381; 
Paul  V.  Whitman,  3  Watts  &  S.  407. 

»  Hanson  v.  Buckner,  4  Dana,  254;  20  Am.  Doc.  401  ;  Bo..kcr  v.  Pell. 
3  Bibb.  175;  6  Am.  Dec.  641  ;  Graliam  v.  TankorHJey.  15  Ala.  (M5;  Stcveng 
V.  Jack,  3  Yerg.  403;  Devour  v.  Johnson,  3  Bibb,  410 ;  Prewitt  i-.  Kenton, 
3  Bibb,  282;  Cox  v.  Strode,  4  Bibb,  4;  Rhode  v  Gicen,  26  Ind.  83. 


§  038  COVENANTS.  1292 

the  trial  of  the  action  of  covenant,  that  he  was  evicted  by 
force  of  an  adverse  and  superior  title;  in  other  words,  he 
must  show  that  the  warrantor,  by  appearing  and  defend- 
ing the  action  of  (j  cnnent,  could  not  have  prevented  a 
recovery."  ^  It  does  not  follow  as  a  necessary  conclusion 
that  the  defendant  has  been  defeated  in  a  suit  in  eject- 
ment because  his  title  was  defective.  He  may  have  suf- 
fered judgment  to  go  against  him,  or  the  plaintiff  may 
have  recovered  on  some  technical  ground.  It,  perhaps, 
is  unnecessary  to  remark  that  want  of  notice  to  the  cove- 
nantor of  the  pendency  of  the  prior  suit,  while  giving 
him  an  opportunity  to  show  his  title  when  sued  upon  the 
covenant,  cannot  defeat  a  recovery  on  the  part  of  the 
covenantee.  The  latter  is  under  no  obligation  to  give 
notice  to  enable  him  to  recover.^ 

§  938.     Mortgag-ee  entitled   to  benefit  of  covenant. — 

Where  land  has  been  purchased  by  a  mortgagor  with  cove- 
nants of  warranty,  the  mortgagee  is  entitled  to  the  benefit 
of  such  covenants.  Tlius,  a  person  purchased  land  with 
covenants  of  warranty,  and  subsequently  executed  a  mort- 
gage upon  it,  and  finally  the  title  passed  to  another.  It 
was  then  found  that  the  title  originally  acquired  by  the 
mortgagor  had  totally  failed,  whereupon  the  grantor  of 
the  mortgagor  paid  to  the  last  grantee,  in  ignorance  of 
the  existence  of  the  mortgage,  the  amount  of  his  liability 

•  Sisk  V.  Woodruff,  15  111.  15,  per  Treat,  C.  J.  See,  also,  Fields  v. 
Hunter,  8  Mo.  128.  In  some  cases  a  judgment  has  been  deemed  evidence 
of  the  bare  lact  of  an  eviction  :  Hanson  v.  Buckner,  4  Dana,  254 ;  29  Am. 
Dec.  401 ;  Booker  v.  Bell,  3  Bibb,  175;  6  Am.  Dec.  641 ;  Rhode  v.  Green, 
26  Ind.  83.  But  in  other  cases  it  is  held  that  unless  there  is  evidence  of 
Bome  chant^e  of  possession,  actual  or  constructive,  a  judgment  is  not  evi- 
dence of  an  eviction :  Hoy  v.  Taliaferro,  8  Smedes  &  M.  741 ;  Miller  v. 
Avery,  2  Barb.  Ch.  582;  McDowell  v.  Hunter,  Dud.  (Ga.)  4;  Webb  v. 
Alexander,  7  Wend.  286;  Paul  v.  Witman.  3  Watts  &  S.  407;  Dennis 
V.  Heath,  11  Smedes  &  M.  218;  49  Am.  Dec.  51. 

*  Kingtj.  Kerr,  5  Ohio,  158;  22  Am.  Dec.  777;  Claycomb  v.  Munger, 
51  111.  378;  Rhode  v.  Green,  26  Ind.  83;  Smith  v.  Compton,  3  Barn.  & 
Adol.  408;  Duffield  v.  Scott,  3  Term  Rep.  376.  Where  a  grantee  has  sur- 
rendered possession  to  one  claiming  adversely,  he  must  show  that  the 
title  of  such  person  is  paramount  to  that  of  his  grantor :  Snyder  v.  Jen- 
nings, 15  Neb.  372. 


1293  COVENANTS.  §  939 

on  the  covenant.  An  action  was  brought  to  foreclose  the 
mortgage,  and  the  court  decided  that  equity  had  jurisdic 
tion  to  compel  the  last  grantee  to  whom  the  money  was 
paid  to  repay  so  much  of  the  amount  received  by  him  as 
was  necessary  for  the  protection  of  the  mortgagor/  The 
court  considered  that  the  mistake  of  the  parties  as  to  the 
fact  of  the  nonexistence  of  the  mortgage  was  a  sufficient 
reason  upon  which  to  found  a  right  of  recovery.  To  the 
argument  that  this  liability  was  purely  legal,  and  that  a 
complete  remedy  might  be  had  at  law,  Mr.  Cliief  Justice 
Beck  replied:  ''  But  mistakes  whereby  parties  are  deprived 
of  their  property  or  money  have  always  been  subjects  of 
chancery  cognizance,  and  remedies  to  relieve  therefrom 
are  never  refused  in  that  forum.  While  it  is  true  that 
money  paid  by  mistake  may  be  recovered  at  law,  and 
when  no  circumstances  attend  the  case  which  will  bring 
it  within  chancery  jurisdiction,  the  remedy  must  be  sought 
at  law,  yet  if  for  any  reason  the  case  is  of  equitable  cog- 
nizance, the  party  will  not  be  required  to  go  to  another 
forum  to  recover  the  money,  but  will  have  full  relief  in 
equity."' 

§  939.     Interest   and  counsel   fees  as  damagres. — The 

plaintiff  is  generally  allowed  to  recover  interest  upon  the 
purchase  money  as  part  of  the  damages  to  which  he  is 
entitled,  as  an  offset  to  the  right  of  the  owner  of  the  par- 
amount title  to  mesne  profits.^  But  the  recovery  of  inter- 
est is  confined  within  the  limits  for  which  a  recovery  of 
the  mesne  profits  maybe  had.  "The  buyer  in  the  cove- 
nant  of  seisin  recovers  back  the  consideration  money  and 
interest,  and  no  more.  The  interest  is  to  countervail  the 
claim  for  mesne  profits,  and  is,  and  ought  to  be,  commen- 

'  Rose  V.  Schaffncr,  50  Iowa,  483. 

*  Rose  V.  Schaffner,  supra.     But  see  Davidson  v.  Cox,  10  Neb.  150. 

'  Sumner  v.  Williams,  8  Mass.  222;  5  Am.  Dec.  83;  Downer  v.  Smith, 
SB  Vt.  464;  Staats  v.  Ten  Eyck,  3  Caines,  111;  2  Am.  Dec.  254;  Brandt 
V.  Foster,  5  Iowa,  295;  Winslow  v.  McCall,  32  Barb.  241;  McNear  v. 
McComber,  18  Iowa,  12;  Partridge  v.  Hatch,  18  N.  II.  494.  See  Dalton 
V.  Bowker,  8  Nev.  190;  Leffingwell  v.  Elliott,  10  Tick.  204. 


§  939  COVENANTS.  1294 

surate  in  point  of  time  with  the  legal  claim  to  mesne 
profits."'  Whether  counsel  fees  can  be  recovered  or  not 
is  a  mooted  question.  In  some  cases  they  have  been  con- 
sidered a  proper  element  of  damages.^  In  others,  how- 
ever, they  have  been  held  not  to  be  recoverable.^  But 
where  the  covenant  is  to  indemnify  the  covenantee  and 
save  him  harmless  from  all  loss  and  expenses,  aside  from 
a  covenant  for  title  as  such,  counsel  fees  are  recoverable 
as  damages.'*  Where  notice  of  the  pendency  of  an  action 
has  been  given  to  the  covenantor,  and  he  has  been  re- 
quested to  defend,  and  refuses  to  do  so,  the  legal  elements 
of  damage  are  said  to  be  the  costs  of  the  suit,  the  costs 
to  which  the  covenantee  was  subjected  in  defending  it, 
with  interest  from  the  time  of  payment,  and  the  value  of 
the  premises  at  the  date  of  eviction,  with  interest  from 
that  time.^ 

1  4  Kent's  Com.  375.  See,  also,  Patterson  v.  Stewart,  6  Watts  &  S.  528 ; 
40  Am.  Dec.  586;  Flint  v.  Steadman,  36  Vt.  210;  Oaulki.is  v.  Harris,  9 
Johns.  324;  Ela  v.  Card,  2  N.  H.  175;  9  Am.  Dec.  46;  Guthrie  v.  Piigs- 
ley,  12  Johns.  126;  Williams  v.  Bseman,  2  Dev.  485;  Partridge  v.  Hatch, 
18  N.  H.  494;  Clark  ?..  Parr,  14  Ohio,  118;  45  Am.  Dec.  529:  Ricii  v. 
Johnson,  1  Chand.  20;  62  Am.  Dec.  144;  Kyle  v.  Fauntleroy,  9  Mon.  B. 
620;  Bennett  v.  Jenkins,  13  Johns.  50.  But  see  Whiting  v.  Dcwey,  15 
Pick.  428. 

»  Rowe  V.  Heath,  23  Tex.  620;  Harding  t).  Larkin,  41  111.  420;  Rickert 
V.  Snyder,  9  Wend.  416;  McAlpin  v.  Woodruff,  11  Ohio  St.  130;  Haynes 
V.  Stevens,  11  N.  H.  28;  Keeler  v.  Wood,  30  Vt.  242;  Robertson  v.  Lem- 
on, 2  Bush,  303;  Kingsbury  v.  Smi  h,  13  N.  H.  125;  Pitk  n  v.  Leavitt, 
13  Vt.  379;  Turner  v.  Goodrich,  26Vt.  709;  Drew  v.  Towle,  10  Fost. 
(N.  H.)  531;  64  Am.  Dec.  309;  Sumner  v.  Williams,  8  Mass.  162;  5  Am. 
Dec.  83. 

»  Jeter  v.  Glenn,  9  Rich.  380;  Williams  v.  Burg,  9  Lea  (Tenn.),  455; 
Gragg  v.  Richardson,  25  Ga.  566;  71  Am.  Dec.  190.  See  Cushinan  v. 
Blanchard,  2  Greenl.  266;  11  Am.  Dec.  76;  KennisoQ  t).  Taylor,  18N.  H. 
220;  Williamsons.  Williamson,  71  Me.  442;  Harding  v.  Larkin,  41  IlL 
413;  Swartz  v.  Ballou,  47  Iowa,  188;  29  Am.  Rep.  470;  Morris  v.  Rowan, 
17  N.  J.  L.  304;  Drew  v.  Towle,  30  N.  H.  531 ;  64  Am.  Dec.  309;  Holmea 
V.  Sinnickson,  15  N.  J.  L.  313;  Robertson  v.  Lemon,  2  Bush,  301. 

*  Robinson  v.  Bakewill,  25  Pa.  St.  (1  Casey),  426;  Cox  v.  Henry,  32 
Pa.  St.  (8  Casey),  21;  Anderson  r.  Washabaugh,  43  Pa.  St.  115. 

*  Williamson  v.  Williamson,  71  Me.  442.  See,  also,  Gragg  v.  Richard- 
eon,  25  Ga.  570;  71  Am.  Dec.  190;  Haynes  v.  Stevens,  11  N.  H.  28; 
Merritt  v.  Morse,  108  Mass.  270;  Pitkin  v.  Leavitt,  13  Vt.  379;  White  v. 
Williams,  13  Tex.  258. 


1295  COVENANTS.  §  940 

§  940.  Covenants  running  with  the  land. — Certain 
covenants  are  appurtenant  to  the  estate  granted  by  the 
deed  in  which  such  covenants  are  contained,  and  bind  the 
assigns  of  the  covenantor,  and  vest  in  the  assigns  of  the 
covenantee  in  the  same  manner  as  if  they  had  personally 
made  them.  Covenants  of  this  kind  are  said  to  run  with 
the  land.  A  covenant  by  a  grantor  that  he  will  not  erect, 
or  suffer  to  be  erected,  any  structure  upon  a  lot  adjoining 
the  property  which  he  has  conveyed,  is  a  covenant  that 
runs  with  the  land.^  A  covenant  to  pay  assessments  will 
run  with  the  land.^  So  will  a  covenant  made  by  a  grantee 
that  he  will  not  carry  on,  or  allow  to  be  carried  on,  any 
offensive  trade  upon  the  premises  conveyed  to  him.'  A 
covenant  in  a  deed  of  city  lots,  providing  that  any  house 
which  should  be  built  upon  such  lots  should  be  placed 
back  a  specified  distance  from  the  line  of  the  street  on 
which  such  lots  front,  is  held  to  be  a  covenant  running 
with  the  land.^  But  an  agreement  by  the  grantee  con- 
tained in  a  deed-poll  to  keep  in  repair  a  building  of  the 
grantor  on  land  adjoining  that  conveyed,  does  not  run  with 
the  land,  and  hence  a  subsequent  grantee  of  the  adjoining 
land  cannot  maintain  an  action  on  it.'  A  covenant  to 
maintain  fences  already  built  will  run  with  the  lainl." 
But  a  covenant  to  build  a  fence  seems  to  be  personal  only.^ 
In  England,  all  covenants  for  title  are  considered  as  ap- 

*  Trustees  etc.  v.  Cowen.  4  Paige,  510;  27  Am.  Dec.  80. 
>  Kearney  v.  Post,  2  N.  Y.  394. 

*  Barron  v.  Richard,  8  Paige,  351. 

*  Winfield  v.  Henning,  21  N.  J.  Eq.  188. 

*  Miirtin  v.  Drinan,  128  Mass.  515. 

*  Bronson  v.  Coffin,  lOS  Mass.  175;  11  Am.  Rep.  335;  Eaator  v.  Liltlo 
Miami  R.  R.  Co.,  14  Ohio  St.  48;  Kello>,'j,'  v.  Roliinsm,  6  Vt.  27ti;  27 
Am.  Dec.  550;  Hazlett  v.  Sinclair,  76  Ind.  488;  40  Am.  Rep.  2-)4.  See, 
also,  Sterling  Hydraulic  Co.  v.  Williams,  6G  III.  393;  (Jaines  r.  Poor.  3 
I\let.  503;  79  Am.  Dec.  559;  Thomas  v.  Van  Koi)tT,  C.  (HI!  A  J.  372;  Fair- 
banks u.  Williamson,  7  Me.  9K;  Stockettv.  Howard,  31  Md.  121 ;  Country- 
rr.an  v.  Deck,  13  Abb.  N.  C.  110;  Van  ileiisselaer  v.  Dennis.jri,  35  N.  Y. 
893;  Worthington  v.  Hewea,  19  Ohio  St.  6t};  Van  UenHselacr  «.  S.i.ith, 
27  Barb.  101;  Hickey  v.  Lake  Shore  etc.  Ry.  Co.,  61  Ohio  St.  40;  40 
Am.  St.  Kep.  545.     But  see  Kennedy  v.  Owen,  136  .Ma>^s.  19:». 

^  Hartung  v.  Wittj,  5'J  Wis.  2o5;  Kennedy  v.  Owen,  30  Mass.  199. 


§  940  a  COVENANTS.  1296 

purtenant  to  the  land,  and  to  run  with  it.*  But  in  this 
country,  the  covenants  for  title  considered  as  running 
with  the  kind  are  those  for  quiet  enjoyment,  for  further 
assurance,  and  of  warranty.^  A  covenant  for  the  main- 
tenance of  a  dam  and  adjacent  works  for  the  benefit  of  an 
adjoining  estate  which  the  covenantor  conveys,  will  run 
with  the  land.^  If  at  the  time  the  deed  is  executed  a 
bond  is  also  executed  containing  a  covenant,  binding  the 
purchaser,  his  representatives  and  assigns,  not  to  permit 
a  warehouse  of  a  certain  kind  to  be  built  on  the  land,  the 
covenant  runs  with  the  land.*  A  covenant  made  by  a 
railroad  company  in  consideration  of  a  grant  of  a  right 
of  way,  to  build  and  forever  maintain  a  switch  from  the 
railroad  to  the  grantor's  mill,  will  run  with  the  land.^  So 
it  is  held,  where  a  deed  conveying  a  right  of  way  to  a  rail- 
road company,  stipulated  that  the  company  should  build 
a  depot  on  the  right  of  way,  to  be  used  for  the  purposes 
of  the  railroad,  but  to  be  the  property  of  the  grantor,  that 
the  covenant  runs  with  the  land.  It  can  be  enforced 
against  another  company  purchasing  the  property  and 
franchises  of  the  first.* 

§  940  a.      Grantee    bound    by    acceptance    of    deed. — 

After  acceptance  of  the  deed  by  the  grantee,  and  entry 

1  Kingdom  v.  Nottle,  1  Maule  &  S.  355. 

'  Logan  V.  Moulder,  1  Ark.  313;  33  Am.  Dec.  338;  White  v.  "Whitney, 
3  Met.  81;  Chandler  ?;.  Brown,  59  N.  H.  370;  Withy  u.  Munford,  5  Cowen, 
137;  Crisfield  v.  Storr,  36  Md.  129;  11  Am.  Rep.  480;  Rmdskopf  v. 
Farmers'  etc.  Trust  Co.,  58  Barb.  36;  Burtners  v.  Keran,  24  Gratt.  42; 
Hunt  V.  Amidon,  4  Hill,  345;  40  Am.  Dec.  283;  Markland  v.  Crump,  1 
Dev.  &  B.  94;  27  Am.  Dec.  230;  Claycomb  v.  Munger,  51  III.  372;  Civil 
Code  Cal.  §  1463;  Kimball  v.  Bryant,  25  Minn.  496. 

^  Fitch  V.  Johnson,  104  111.  111.  A  covenant  by  a  railroad  company 
to  build  a  fence,  in  a  deed  conveying  to  it  a  right  of  way,  runs  with  the 
land,  and  a  new  corporation  succeeding  by  foreclosure  to  the  rights  of 
the  old  is  bound  to  perform  it  as  a  duty  blended  with  its  right  to  use 
and  occupy  the  land  with  its  track :  Midland  Railway  Co.  v.  Fislier,  125 
Ind.  19;  21  Am.  St.  Rep.  189. 

*  Robbina  v.  Webb,  68  Ala.  393.  See,  for  an  instance,  a  covenant 
running  with  the  land  in  relation  to  the  quantity  of  water  flowing  in  a 
creek:  Shaber  v.  St,  Paul  Water  Co.,  30  Minn.  179. 

*  Lydick  v.  I'.altimore  &  Ohio  R.  R.  Co.,  17  W.  Va.  427. 

*  Georgia  Southern  R.  R.  Co.  v.  Reeves,  64  Ga.  492. 


1-97  COVENANTS.  §§  911, 9-12 

into  possession  of  the  land  conveyed,  lie  is  bound  as 
effectually  by  the  conditions  contained  in  the  deed  as 
though  he  had  signed  and  executed  the  deed  himself. 
He  is  deemed  by  such  acts  to  have  expressly  agreed  to 
do  what  it  is  stipulated  in  the  deed  that  he  shall  do. 
Whether  or  not  such  an  obligation  is  to  be  deemed, 
technically  speaking,  a  covenant  running  with  the  land, 
it  is,  at  all  events,  an  agreement  on  the  part  of  the  grantee 
evidenced  by  his  acceptance  of  the  deed/  Tlius,  the 
grantee  is  bound  by  accepting  a  deed  declaring  that  it  is 
made  subject  to  the  condition  that  the  grantee,  his  heirs 
and  assigns,  shall  build  and  maintain  a  fence.  Such  a 
condition  is  binding  perpetually  on  the  owners  of  the 
land  conveyed,  and  in  the  event  of  a  failure  of  the  grantee 
and  his  assigns  to  comply  with  it,  the  grantor  may  con- 
struct or  repair  the  fence,  and  maintain  an  action  against 
the  original  grantee,  and  those  deriving  title  from  him, 
to  charge  each  with  his  proper  share  of  the  expense.^ 

§  941.  Markethouse. — If  in  a  deed  to  a  city  of  real 
estate  there  is  a  covenant  that  the  lot  shall  revert,  and 
the  grantee  shall  reconvey  when  the  ground  conveyed  is 
no  longer  used  for  a  market,  the  fee  subject  to  the  ease- 
ment, is  retained  by  the  grantor.  The  covenant  runs 
with  the  land,  a  right  of  re-entry  arising  upon  an  abandon- 
ment, and  the  covenant  for  a  reconveyance  dispenses  with 
the  necessity  of  an  entry  by  the  reversioner.' 

§   942.      Covenants    not    ninniiigr   with    the    lan<I. — In 

this  country,  the  covenants  of  seisin  against  encuinbraii- 

1  Hickey  v.  Lake  Shore  etc.  Ry.  Co..  51  Ohio  St.  40;  46  Am.  St.  Rep. 
545;  Georgia  Southern  R.  R.  Co.  v.  Reeves,  Gi  Ga.  492;  Burbuuk  v. 
Pillsbury,  48  N.  H.  475;  97  Am.  Dec.  633. 

»  Hickey  v.  Lake  Shore  etc.  Ry.  Co.,  51  Oliio  St.  40;  40  Am.  St.  Rr-p. 
545.  The  grantee  is  estopped  by  the  acceptance  of  a  deed  aw  fully  as  the 
grantor:  Hubbard  v.  Marshall,  50  Win.  327;  Bowman  v.  (Jrillith,  35 
Neb.  361;  Chloupek  v.  Perotka,  89  Wis.  551;  46  Am.  St.  Reji.  858; 
Lowber  v.  Connit,  36  Wis.  176;  Hutchinaon  r.  Chicairo  etc.  Ry.  Co.,  37 
Wis.  582;  Orthwein  v.  Thomas,  127  111.  554;  11  Am.  St.  Rep.  159. 

•  Baker  v.  St.  Louis,  75  Mo.  671 ;  s.  c.  7  Mo.  App.  429. 
IiEEDS,  Vol.  II. —82 


§  941  COVENANTS.  1298 

€es,  and  of  good  right  to  convey,  are  regarded  as  cove- 
nants in  presenti,  and  do  not  run  with  the  land.^  "The 
covenants  of  seisin,  and  of  a  right  to  convey,  and  that 
the  land  is  free  from  encumbrances,  are  personal  cove- 
nants, not  running  with  the  land  or  passing  to  the  as- 
signee; for,  if  not  true,  there  is  a  breach  of  them  as  soon 
as  the  deed  is  executed,  and  they  become  choses  in  action, 
which  are  not  technically  assignable."^  A  covenant  that 
the  grantee,  "his  heirs  and  assigns,  owner  or  owners  of 
the  land  for  the  time  being,"  would  on  a  notice  of  six 
months  resell  the  land  conveyed  for  a  fixed  price,  does 
not,  it  is  held,  run  with  the  land."*  So,  it  is  held  that  a 
covenant  by  an  owner  of  land  not  to  erect  a  gristmill  on 
his  premises  does   not  run   with   the  land.*     A  covenant 

^  Lawrence  v.  Montgomery,  37  Cal.  188.  See  Greenby  v.  "Wilcocka,  2 
Johns.  1;  3  Am.  Dec.  379;  Fuller  v.  Jillette,  9  Biss,  296;  Pillsbury  i;. 
Mitchell,  5  Wis.  21;  McCarty  v.  Le.ggett,  3  Hill,   134;  Wilson  v.  Forbes, 

2  Dev.  30;  Chapman  v.  Holmes,  5  Halst.  20;  Hacker  v.  Storer,  8  Greenl. 
228;  Smith  v.  Jeffts,  44  N.  H.  482;  Wilson  v.  Cochran,  46  Pa.  St.  229; 
Heath  v.  Whidden,  24  Me.  383 ;  Garfield  v.  Williams,  2  Vt.  327 ;  Coit  v. 
McReynolds,  2  Rob.  (N.  Y.)  655;  Carter  y.  Denman,  3  Zab.  260;  Ross 
V.  Turner,  2  Eng.  132;  44  Am.  Dec.  531;  Logan  v.  Moulder,  1  Ark.  313; 
33  Am.  Dec.  338;  Grist  v.  Hodges,  3  Dev.  200;  Pence  v.  Duvall,  9  Mon. 
B.  48;  South  v.  Hoy,  3  Mon.  94;  Brady  v.  Spurck,  27  111.  482;  Pierce  v. 
Johnson,  4  Vt.  253 ;  Richardson  v.  Dorr,  5  Vt.  9 ;  Potter  v.  Taylor,  6  Vt. 
676;  Presoott  v.  Trueman,  4  Mass.  627;  3  Am.  Dec.  246;  Clark  v.  Swift, 

3  Met.  390;  Wheelock  v.  Thayer,  16  Pick.  68;  Bickford  v.  Page,  2  Mass. 
455;  Thayer  v.  Clemence,  22  Pick.  490;  Blydenburgh  v.  Cotheal,  1  Dner, 
197;  Williams  v.  Wetherbee,  1  Aiken,  233;  Mitchell  v.  Warner,  5  Conn. 
497;  Davis  v.  Lyman,  6  Conn.  249;  Hamilton  v.  Wilson,  4  Johns.  72;  4 
Am.  Dec.  253;  Beddoe  v.  Wadsworth,  21  Wend.  120;  Townsend  v.  Mor- 
ris, 6  Cowen,  123;  Garrison  v.  Sandford,  7  Halst.  261.  But  it  is  held  in 
Cole  V.  Kimball,  52  Vt.  639,  that  a  covenant  against  encumbrances  runs 
with  the  land.  And  see,  also,  to  same  effect,  Richard  v.  Bent,  59  111.  38; 
14  Am.  Rep.  1;  Foote  v.  Burnet,  10  Ohio,  317;  36  Am.  Dec.  90;  Eaton 
V.  Lyman,  30  Wis.  41;  Pillsbury  v.  Mitchell,  5  Wis.  17;  Mecklem  v. 
Blake,  22  Wis.  495 ;  Devere  v.  Sunderland,  17  Ohio,  60;  Jeler  v.  Glynn,  9 
Rich.  376;  Dickson  v.  Desire,  23  Mo.  151;  66  Am.  Dec.  661;  Backus  v. 
McCoy,  3  Ohio,  211 ;  17  Am.  Dec.  585 ;  Overheiser  v.  McCallister,  10  Ind. 
41 ;  McCready  v.  Brisbane,  1  Nott  &  McC.  104. 

»  4  Kent's  Com.  471. 

»  London  etc.  Railway  Co.  v.  Gomm,  30  Week.  R.  620;  21  N.  Y.  Daily 
Reg.  No.  150. 

*  Harsha  v.  Reid,  45  N.  Y.  415.  See  Brown  v.  McKee,  57  N.  Y.  684. 
See,  also,  Wheelock  v.  Thayer,  16  Pick.  68;  Mayor  etc.  v.  Pattison,  10 


1-99  COVEXAXTS. 


942  a 


that  the  tract  conveyed  includes  a  specific  quantity  of 
land  does  not  run  with  the  land.  The  grantee  of  the 
covenantee  cannot  maintain  an  action  for  its  breach.^ 
An  agreement  that  the  products  of  land  shall  be  trans- 
ported  by  a  certain  common  carrier  is  not  a  covenant 
running  with  the  land.^  An  agreement  for  the  pay- 
ment of  taxes  outstanding  does  not  run  with  the  land.' 
Nor  does  a  covenant  made  by  a  landowner  to  contribute 
to  the  construction  of  a  party  wall,  when  he  shall  use 
it,  run  with  the  land.^ 

§  942  a.  Covenant  converted  into  lien. — An  agree- 
ment by  which  a  landowner  agrees  to  take  water  from  a 

East,  136;  Breever  v.  Marshall,  19  N.  J.  Eq.  537.  And  see  Hammond  v. 
Port  Royal  &  Augusta  Ry.  Co.,  16  S.  C.  567. 

1  Salmon  v.  Vallejo,  41  Cal.  481.  Crockett,  J.,  in  delivering  the 
opinion  of  the  court,  said :  "  A  covenant  of  seisin,  or  that  the  grantor  has 
lawful  right  to  convey,  or  that  the  land  is  free  from  encumbrances,  is  a 
personal  covenant,  and  when  broken  is  broken  as  soon  as  made.  Tlie 
right  of  action  upon  it  is  a  mere  chose  in  action  and  does  not  run  with 
the  land :  Lawrence  v.  Montgomery,  37  Cal.  188.  A  covenant  that  the 
tract  conveyed,  or  that  the  grant  under  which  it  is  held  inchides  a  speci- 
fied quantity,  stands  on  the  same  footing  and  is  broken  as  soon  as  made- 
It  either  did  or  did  not  contain  the  stipulated  quantity,  and  the  fact 
could  not  be  changed  by  anything  which  subsequently  transpired.  The 
difficulty  of  ascertaining  the  fact  does  not  touch  the  question  of  the  na- 
ture of  the  covenant.  If  the  deficiency  could  not  be  ascertained  except 
by  a  final  official  survey  under  the  decree  of  confirmation  that  fact  miglit 
possibly  prevent  the  statute  of  limitations  from  running  until  survey 
was  made,  though  on  this  point  I  express  no  opinion.  But  tlie  nature 
of  the  covenant  remains  the  same,  and  is  not  affected  by  the  fact  that 
there  was  no  proof  by  which  the  breach  of  it  could  be  estiubiished  until 
the  final  survey  was  maile.  The  breach  existed  as  soun  as  the  covenant 
was  made ;  but  the  proof  to  establish  it  may  not  liave  l)cc'n  altainnhle 
until  the  final  survey.  The  same  difficulty  might  ari.seunder  a  covenant 
of  seisin,  or  against  encumbrances,  which,  it  is  well  settled,  are  pert-onal 
covenants  not  running  with  the  land." 

'^  West  Virginia  Transportation  Co.  v.  Ohio  River  etc.  Co.,  22  \V.  Va. 
600;  46  Am.  Rep.  527.  See,  also,  Miller  v.  Noonan,  12  Mo.  App,  ;57U, 
where  it  is  held  that  an  agreement  by  a  mortgagor  to  convey  to  a  per- 
son to  whom  the  mortgagee  may  sell,  that  foreclosure  should  not  l)c  had 
for  a  year,  and  providing  for  a  division  of  the  proceeds  of  sale,  ia  ijot  a 
covenant  runnintr  with  the  land. 

*  Graber  v.  Duncan,  79  Ind.  565. 

*  Scott  V.  McMillan,  76  N.  Y.  141;  8  Daly,  320;  Gibson  v.  Holden, 
115  111.  199;  56  Am.  Rep.  146. 


§  90G  COVENANTS.  1300 

water  company  for  the  use  of  the  land  for  a  specified  term 
and  price,  and  stating  "  that  the  covenant  should  run  with 
the  land/'  will  create  a  lien  on  the  land  for  the  water  sup- 
plied for  such  purposes,  binding  as  against  the  landowner 
and  his  successors  in  interest  with  notice.  But  it  is  not 
a  covenant  running  with  the  land  so  as  to  bind  personally 
successors  in  interest  without  notice.^ 

§  94:3.     Change  in  character   of  neig-hhorhood. — The 

exercise  of  the  authority  of  a  court  of  equity  to  compel 
the  observance  of  covenants  which  the  owner  of  land  has 
made  with  an  owner  of  adjoining  land,  limiting  the  use 
of  the  lands  to  the  purposes  of  private  residences,  in  con- 
sideration of  similar  covenants  reciprocally  made  by  the 
latter  owner,  is  within  the  discretion  of  the  court.  Such 
relief  will  not  be  granted  if  the  object  of  the  agreement 
has  been  defeated  by  a  change  in  the  character  of  the 
neighborhood,  so  that  to  deprive  the  owner  of  the  power 
of  having  his  property  conform  to  that  of  the  neighbor- 
hood would  be  inequitable.^  Adjoining  owners  mutually 
covenanted  for  themselves,  their  heirs  and  assigns,  that 
none  but  dwelling-houses  should  be  erected  upon  their 
respective  premises,  and  that  neither  party  would  allow 
nor  carry  on  "  any  stable,  schoolhouse,  enginehouse, 
tenement,  or  community  house,  or  any  kind  of  manufac- 
tory, trade,  or  business."  The  general  current  of  busi- 
ness had  been  such  that  an  elevated  railroad  was  built  in 
front  of  the  premises,  which  injuriously  affected  the 
premises,  and  made  tliem  less  profitable  than  they  had 
been  for  the  purpose  of  a  dwelling-house.  From  the  plat- 
form of  the  station  persons  could  look  into  the  windows. 
This  fact,  added  to  the  noise  of  the  trains,'  made  it  im- 
possible to  obtain  privacy  and  quiet,  and  hence  the  rental 
value  of  the  property  was  lowered.  As  a  contingency  had 
occurred  which   had  not  been  contemplated  by  the  par- 

1  Fresno  Canal  etc.  Co.  v.  Rowell,  80  Cal.  114;  13  Am.  St.  Rep.  112. 
»  Trustees  of  Columbia  College  v.  Thacher,  87  N.  Y.  311 ;  41  Am.  Eep. 
365. 


1301  COVENANTS.  §  944 

ties,  and  which  phaced  upon  the  property  a  condition  de- 
feating their  objects,  rendering  the  enforcement  of  the 
covenant  oppressive  and  inequitable,  the  court  refused  to 
decree  its  enforcement.^ 


§  944.  Estoppel  from  covenants. — "When  a  deed  shows 
by  a  recital  or  covenant  that  there  was  an  actual  intention 
to  grant  and  receive  a  certain  estate,  the  parties  are  es- 
topped from  denying  the  eflfect  of  the  deed  as  so  intended.^ 
Mr.  Justice  Nelson,  after  the  examination  of  several  cases, 
says  upon  this  subject:  "The  principle  deducible  from 
these  authorities  seems  to  be  that  whatever  may  be  the 
form  or  nature  of  the  conveyance  used  to  pass  real  prop- 
erty, if  the  grantor  sets  forth  on  the  face  of  the  instru- 
ment, by  way  of  recital  or  averment,  that  he  is  seised  or 
possessed  of  a  particular  estate  in  the  premises,  and  which 
estate  the  deed  purports  to  convey,  or  what  is  the  same 
thing,  if  the  seisin  or  j)ossession  of  a  particular  estate  is 

'  Trustees  of  Columbia  College  v.  Thacher,  87  N.  Y.  311 ;  41  Am.  Rep. 
365.  Said  Danforth,  J.,  in  delivering  the  opinion  of  the  court  (p.  320): 
"It  is  true  the  covenant  is  without  exception  or  limitation,  but  I  think 
this  contingency  which  has  happened  was  not  within  the  contemplation 
of  the  parties.  The  road  was  authorized  by  the  legislature,  and  by  rea- 
son of  it  there  has  been  imposed  upon  the  projierty  a  condition  of  things 
which  frustrates  the  scheme  devised  by  the  parties,  and  deprives  tlie 
property  of  the  benefit  which  might  otherwise  accrue  from  its  observance. 
This  new  condition  has  already  affected  in  various  ways  and  degrees  the 
uses  of  property  in  its  neighborhood  and  property  values.  It  has  made 
the  defendant's  property  unsuitable  for  the  use  to  which,  by  the  covenant 
of  the  grantor,  it  was  appropriated,  and  if,  in  face  of  its  enactment  and 
th*.-  conti.igenc'ss  flowing  '  om  it,  the  covenant  can  stand  anywiiere,  it 
surely  cannot  in  a  court  of  equity." 

*  Williams  «.  Presbyterian  Society,  1  Ohio  St.  478;  Carver  v.  Jackson, 
4  Pet.  86;  Fitzhugh  v.  Tyler,  9  B.  Mon.  561;  Klder  v.  Derby,  138  111.  22S; 
Bowman  v.  Taylor,  2  Ad.  &  E.  278;  Wadhams  v.  Swan,  WJ  111.  4(1;  Wil- 
liams  V.  Claiborne,  1  Smedes  &  M.  Ch.  305;  Doe  v.  Errington,  8  Scott, 
210;  McBurney  v.  Cutler,  18  Barb.  208;  Clark  v.  Baker,  14  C:al.  612;  78 
Am.  Dec.  449;  Van  Ilenssehier  v.  Kearney,  11  How.  297;  Gibson  v.  Chou- 
teau, 39  Mo.  536;  Taggart  v.  Risley,  4  Or.  235;  French  v.  Spencer,  21 
How.  210;  Koot  v.  Crock,  7  Pa.  St.  (Barr.)  380;  Decker  v.  Caskcy,  2 
Green  Ch.  (3  N.  J.  Eq.)  446;  Kinsman  v.  Eooniis,  11  Ohio,  478;  Smitii 
V.  Pendell,  19  Conn.  107;  48  Am.  Dec.  146;  Jackson  v.  I'arkhurBt,  9 
Wend.  209. 


,§   944  COVENANTS.  1302 

affirmed  in  the  deed,  either  in  express  terms  or  by  neces- 
sary implication,  the  grantor  and  all  persons  in  privity 
with  him  shall  be  estopped  from  ever  afterward  denying 
that  he  was  so  seised  and  possessed  at  the  time  he  made 
the  conveyance.  The  estoppel  works  upon  the  estate,  and 
binds  an  after-acquired  title  as  between  parties  and  privies. 
The  reason  is,  that  the  estate  thus  affirmed  to  be  in  the 
party  at  the  time  of  the  conveyance  must  necessarily  have 
influenced  the  grantee  in  making  the  purchase,  and  hence 
the  grantor  and  those  in  privity  with  him,  in  good  faith 
and  fair  dealing,  should  be  forever  precluded  from 
gainsaying  it.  The  doctrine  is  founded,  when  properly 
applied,  upon  the  highest  principles  of  morality,  and 
recommends  itself  to  the  common  sense  and  justice  of 
everyone.  And  although  it  debars  the  truth  in  the  par- 
ticular case,  and  therefore  is  not  unfrequently  character- 
ized as  odious,  and  not  to  be  favored,  still  it  should  be 
remembered  that  it  debars  it  only  in  the  case  where  its 
utterance  would  convict  the  party  of  a  previous  falsehood; 
would  be  the  denial  of  a  previous  affirmation  upon  the 
faith  of  which  persons  had  dealt,  and  pledged  their  credit 
or  expended  their  money.  It  is  a  doctrine,  therefore, 
when  properly  understood  and  applied,  that  concludes 
the  truth  in  order  to  prevent  fraud  and  falsehood,  and 
imposes  silence  on  a  party  only  when  in  conscience  and 
honesty  he  should  not  be  allowed  to  speak."  ^  A  title  sub- 
sequently acquired  by  the  vendor  to  land  conveyed  at  a 
sale  prohibited  by  law  will  not  pass  to  the  purchaser.^ 
An  heir  apparent  who  conveys  land  in  which  his  interest 
is  to  arise  will  be  estopped  by  his  deed.^  If  a  grantor 
having  no  title  executes  a  quitclaim  deed,  a  title  subse- 
quently acquired  by  him  will  not  pass   to  the  grantee.* 

*  In  Van  Eensselaer  v.  Kearney,  11  How.  297,  325.  But  see  Cameron 
V.  Lewis,  59  Miss.  134;  Carter  v.  Bustamente,  59  Miss.  559;  Bradford  v. 
Russell,  79  Ind.  64. 

*  Holmes  v.  Jones,  56  Tex.  41. 

*  Bohon  V.  Bohon,  78  Ky.  408.  But  not  his  heirs,  it  seems,  if  there 
be  no  covenant  of  warranty. 

*  Benneson  v.  Aiken,  102  111.  284 ;  40  Am.  Rep.  592. 


1303  COVENANTS.  §§945,946 

The  rule  concerning  the  passing  of  an  after-acquired  title 
to  the  grantee  applies  to  corporations  as  well  as  to  in- 
dividuals.^ 

§  945.  The  necessity  for  a  covenant. — In  the  absence 
of  statutory  enactment,  the  general  rule  is  that  the  deed 
must  contain  a  covenant  of  some  kind  to  cause  an  after- 
acquired  title  to  pass  by  estoppel.^  In  some  of  the  early 
New  York  cases,  it  was  held  that  an  after-acquired  title 
passed  without  any  covenant;'  but  these  cases  Avere  sub- 
sequently overruled,  and  the  doctrine  announced  that  a 
subsequently  acquired  title  would  not,  in  the  absence  of 
some  covenant  or  stipulation,  pass  to  the  grantee/  If 
land  is  conveyed  with  covenants  of  warranty  in  payment 
of  a  debt,  the  only  remedy  of  the  grantee  in  case  the  title 
proves  defective  is  upon  the  covenants  in  the  deed.* 

§  946.  Statutory  regulation. — In  several  of  the  States, 
it  is  provided  that  where  title  is  conveyed  by  grant,  an 
after-acquired  title  will  pass  by  operation  of  law  to  the 
grantee  and  his  assigns.  Thus,  in  California,  the  pro- 
vision of  the  Civil  Code  on  this  subject  is:  "Where  a  per- 
son  purports  by  proper  instrument  to  grant  real  property 
in  fee  simple,  and  subsequently  acquires  any  title  or  claim 
thereto,  the  same  passes  by  operation  of  law  to  the  gran- 

1  Jones  V.  Green,  41  Ark.  363. 

'  Dart  V.  Dart,  7  Conn.  256;  Mitchell  v.  Woodson,  37  Mis.^.  578;  Ben- 
nett i-.  Waller,  2?.  111.  182;  Jackson  v.  Hubble,  1  Cowen,  613;  Viirick  v. 
Edwards,  1  Hoff.  Cb.  382;  Fox  v.  Widgery,  4  Greenl.  218;  Jackson  v. 
Winslow,  9  Cowen,  18;  Pelletreau  v.  Jackson,  11  Wend.  119;  Jackson 
V  Bradford,  4  Wend.  622;  Frink  v.  Darst,  14  111.  308;  58  Am.  Dec.  575; 
Doswell  V.  Buchanan,  3  Leigh,  365;  23  Am.  Dec.  280;  Sparrow  v.  King- 
man. 1  Comst.  247;  Taft  r.  Stevens,  3  Gray,  504;  Howe  «.  Harrington, 
18  N.  J.  Eq.  (3  Green,  C.  E.)  495;  Freeman  v.  Tliayer,  29  Me.  369;  Tdlot- 
8on  V.  Kennedy,  5  Ala.  413;  39  Am.  Dec.  330;  Comstock  v.  Smith,  13 
Pick.  116;  23  Am.  Dec.  670;  Kinsman  v.  Loo.nis,  11  Ohio,  475;  Blumh- 
ard  V.  Brooks,  12  Pick.  47.  See  Cadiz  v.  M.ijr.rs,  33  Cal.  288;  CM.vcy  v. 
Baker,  37  Cal.  465;   Green  v.  Green,  103  Cal.  408;  Dal  ton  v.  Ham. Hon, 

50  Cal.  42 i. 

«  Jackson  V.  Bull,  1  Johns.  Cas.  81 ;  Jackbou  v.  Murray,  12  Johns.  201. 

*  Jackson  v,  Wright,  14  Julins.  193. 

*  Van  Uiswick  v.  Wallace,  3  McAr.  388, 


§  946  COVENANTS.  1304 

tee,  or  his  successors."^  The  court  commenting  upon 
an  early  statute  of  the  same  purport  said  that  the  effect 
of  its  provisions  is  the  same  as  if  it  were  written  upon  the 
face  of  the  deed,  that  the  grantor  conveyed  all  the  estate 
which  he  then  possessed,  or  which  he  might  at  any  time 
afterward  acquire.^  Equity  will  not  allow  the  grantor  to 
deprive  the  grantee  of  the  benefit  of  the  after-acquired 
title,  by  having  the  deed  made  to  a  third  person  who  has 
no  real  interest  in  the  transaction.'  Where  covenants  for 
title  are  contained  in  the  deed,  the  after-acquired  title  will 
pass  with  the  same  effect  as  if  it  had  originally  been  con- 
veyed to  the  grantee  and  his  successors.'' 

1  Civil  Code  Cal.  §  1106.  And  see  Valle  v.  Clemens,  18  Mo.  490;  Gib- 
son V.  Chouteau,  39  Mo.  567 ;  Bogy  v.  Shoab,  13  Mo.  379 ;  Geyer  v.  Girard,* 
22  Mo.  159;  Amonett  v.  Amis,  16  La.  Ann.  226;  Frink  v.  Darst,  14  111. 
308;  58  Am.  Dec.  575;  Morrison  v.  Wilson,  30  Cal.  344;  Green  v.  Clark, 
31  Cal.  591;  San  Francisco  v.  Lawton,  18  Cal.  477;  79  Am.  Dec.  187. 

a  Clark  v.  Baker,  14  Cal.  612,  630;  76  Am.  Dec.  449. 

«  Quivey  v.  Baker,  37  Cal.  465. 

*  Kimball  v.  Schoff,  40  N.  H.  190;  Irvine  v.  Irvine,  9  "Wall.  617;  Funk 
». Newcomer,  10  Md.  316;  Logan  w.  Moore,  7  Dana,  76;  Pattersons.  Pease, 
5  Ohio,  90;  Robertson  v.  Gaines,  21  Tenn.  (2  Humph.)  383;  Terrett  v. 
Taylor,  9  Cranch,  52;  Tillotson  v.  Kennedy,  5  Ala.  413;  39  Am.  Dec.  330; 
Middlebury  College  v.  Cheney,  1  Vt.  349;  Lawry  v.  Williams,  13  Me. 
281;  Baxter  V.  Bradbury,  20  Me.  260;  37  Am.  Dec.  49;  Rathbun  v.  Rath- 
bun,  6  Barb.  107;  Scott  v.  Douglas,  7  Ohio,  227;  Barton  v.  Morris,  15 
Ohio,  408;  Jackson  w.  Winslow,  9  Cowen,  18;  Hoyt  v.  Dimon,  5  Day, 
479;  Kellogg  v.  Wood,  4  Paige,  578;  Williams  v.  Thurlovi^,  31  Me.  395; 
Kimball  v.  Blaisdell,  5  N.  H.  533;  22  Am.  Dec.  476;  Sparrow  v.  King- 
man, 1  Comst.  246;  Sherwood  v.  Barlow,  19  Conn.  476;  Pike  v.  Galvin, 
29  Me.  183;  Kennedy  v.  McCartney,  4  Port.  141;  Bean  v.  Welsh,  17  Ala. 
772;  Pierce  v.  Milwaukee  R.  R.  Co.,  24  Wis.  553;  1  Am.  Rep.  203;  Dick- 
erson  v.  Talbot,  14  Mon.  B.  64;  Dewolf  v.  Haydn,  24  111.  525;  King  v. 
Gilson,  32  111.  348;  83  Am.  Dec.  269;  Reeder  v.  Craig,  3  McCord,  411; 
O'Bannon  v.  Paremour,  24  Ga.  493;  Somes  v.  Skinner,  3  Pick.  52;  Trull 
V.  Eastman,  3  Met.  121;  37  Am.  Dec.  126;  Wade  v.  Lindsey,  6  Met.  413; 
Mason  v.  Muncaster,  9  Wheat.  445;  Thorndike  v.  Norris,  24  N.  H.  (4 
Fost.)  454;  Jewell  v.  Porter,  31  N.  H.  (11  Fost.)  39;  Hayes  v.  Tabor,  41 
N.  H.  521;  Blake  v.  Tucker,  12  Vt.  44;  Blanchard  v.  Brooks,  12  Pick.  47; 
Comstock  V.  Smith,  13  Pick.  116;  23  Am.  Dec.  670;  Gibbs  v.  Thayer,  6 
Cush.  30;  Ruggles  v.  Barton,  13  Gray,  506;  Thomas  v.  Stickle,  32  Iowa, 
72;  Massie  v.  Sebastian,  4  Bibb,  436;  Logan  v.  Steel,  4  Mont.  433;  Rigg  v. 
Cook,  4  Gilm.  348;  46  Am.  Dec.  462;  Jones  v.  King,  25  111.  884;  Bennett 
V.  Waller,  23  111.  183 ;  Gochenour  v.  Mowry,  33  111.  333 ;  Mitchell  v.Wood- 
8on,  37  iSliss.  578;  Wightman  v.  Reynolds,  24  Miss.  675;  Davie  v.  Keller, 
5  Rich.  Eq.  434;  Brundred  v.  Walker,  1  Beasl.  140. 


1305  COVENANTS.  §§  947   948 

§  947.  Limitations  on  this  rule.— If  the  deed  is  im- 
perfectly executed,  and  for  this  reason  is  not  sufficient  to 
pass  the  title,  there  being  no  right  of  action,  there  is  no 
estoppel.-^  AV^here  the  grantor  uses  the  words  "  right,  title, 
and  interest,"  showing  that  he  intended  to  transfer  no 
greater  title  than  that  which  he  possessed,  an  after-ac- 
quired title  will  not  pass  by  estoppel.^  When  the  cove- 
nants have  been  extinguished,  no  estoppel  arises.^  The 
grantor  may  acquire  a  title  by  the  disseisin  of  his  grantee, 
or  those  claiming  under  him,  and  adverse  possession  for 
the  requisite  time,  and  he  is  not  estopped  from  asserting 
the  title  thus  acquired  against  his  grantee.*  "  We  con- 
sider that  a  grantee  can,  under  circumstances,  be  disseised 
by  his  own  grantor,  as  well  as  by  another."^  An  estoppel 
does  not  arise  from  a  covenant  of  seisin  in  those  States 
where  an  actual  though  a  tortious  possession  is  sufficient 
to  satisfy  this  covenant.^  Where  the  grantor  covenants 
against  his  own  acts  only,  an  estoppel  will  not  be  created 
by  the  acquisition  of  another  title.^ 

§  948.  Estoppel  of  State. — Where  a  grant  is  made  by 
a  State,  the  general  rule  is,  that  the  doctrine  of  estoppel 
applies  to  the  same  extent  as  if  the  conveyance  had  been 

^  Connor  v.  McMurray,  2  Allen,  104;  Patterson  v.  Pease,  5  Ohio,  191 ; 
Kercheval  v.  Triplett,  1  Marsh.  A.  K.  493  j  Wallace  v.  Miner,  6  Ohio,  370. 
See  Dominick  v.  Michael,  4  Sand.  417. 

*  Blanchard  v.  Brooks,  12  Pick.  47;  Adams  v.  Ross,  1  Vroom,  509;  82 
Am.  Dec.  237;  White  v.  Brocaw,  14  Ohio  St.  343.  And  see  Allen  v.  Mol- 
ton,  20  Pick.  463;  Sweet  v.  Brown,  12  Met.  175;  45  Am.  Dec.  2!3;  Bates 
V.  Foster,  59  Me.  158;  8  Am.  Rep.  40f5;  Ballard  v.  Child,  4(3  Me.  153; 
McNear  v.  McComber,  18  Iowa,  14;  Wynn  v.  Ilarman,  5  (Jratt.  157; 
Mills  V.  Catlin,  22  Vt.  93;  Whiting  v.  Dewey,  15  Pick.  434;  Hubbard  v. 
Aptliorp,  3  Gush.  419. 

»  Goodel  V.  Bennett,  22  Wis.  565. 

*  Hines  v.  Robinson,  57  Me.  330;  99  Am.  Dec.  772;  Stearns  v.  Hmdcr- 
sasB,  9  Gush.  497;  57  Am.  Dec.  65;  Johnson  v.  Farlow,  13  Irod.  84;  Kd- 
dleman  v.  Garpenter,  7  Jones  (N.  G.),  616;  Reynolds  v.  Gathers,  5  Jonrs 
(N.  G.),  4.37;  Tilton  v.  Emery,  17  N.  H.  536;  Smith  v.  Monies,  11  Tex.  24. 

*  Franklin  v.  Dorland,  28  Gal.  175,  180;  87  Am.  Dec.  111. 

"  Allen  V.  Snyward,  5  Greonl.  231 ;  17  Am.  Dec.  221 ;  Fox  v.  Widgery, 
4Greenl.  218;  Doane  v.  Willcntt,5  (iray,  333;  66  Am.  Dee.  309. 
^  Comstock  V.  Smith.  13  Pick.  116;  23  Am.  Doc.  670. 


§§  949, 950  COVENANTS.  1306 

made  by  a  private  individual.^  But  in  North  Carolina,  a 
difrercnt  view  obtains.  It  is  there  held  that  only  the  title 
evidenced  by  matter  of  record  will  pass  by  a  grant  made 
by  the  sovereign  power,  and  hence  there  can  be  no 
estoppel.'' 

§  949.  Acquisition  of  title  by  trustee.  — In  order  to 
create  an  estoppel  so  as  to  give  the  grantee  the  benefit  of 
a  title  subsequently  acquired  by  the  grantor,  such  title 
must  be  acquired  by  him  in  the  same  right  as  that  in 
which  he  made  his  deed.  If  the  grantor  executes  a  deed 
in  his  own  right,  and  afterward  acquires  a  title  to  the 
same  property  as  trustee,  the  doctrine  of  estopped  mani- 
festly can  have  no  application.' 

§  950.  General  covenant  wben  grantor's  interest 
only  conveyed. — It  will  be  admitted  that  where  a  deed, 
either  by  recital,  admission,  covenant,  or  otherwise,  dis- 
tinctly shows  the  actual  intention  of  the  parties  to  have 
been  to  convey  and  receive  reciprocally  a  certain  estate, 
they  are  estopped  from  denying  the  operation  of  the  deed 
in  accordance  with  this  intent.  But  in  Oregon  a  case 
arose  where  the  grantor  conveyed  all  his  right,  title,  and 
interest  in  and  to  a  certain  lot,  which  was  properly  de- 
scribed. The  deed  also  contains  this  covenant:  "That  I 
am  the  owner  in  fee  simple  of  said  premises;  that  they 
are  free  from  all  encumbrances,  and  that  I  will  warrant 
and  defend  the  same  from  all  lawful  claims  whatsoever." 
The  grantor  owned,  however,  only  one-half  of  such  lot. 
An  action  was  brought  on  the  covenant,  and  the  defense 

^  People  V.  Society,  2  Paine,  557;  Carver  v.  Jackson,  4  Peters,  87; 
Menard  v.  Massey,  8  How.  313;  Denn  v.  Cornell,  3  Johns.  Cas.  174;  Magee 
V.  Hallett,  22  Ala.  718;  Nieto  v.  Carpenter,  7  Cal.  52r;  Commonwealth  v. 
Pejepscot,  10  Mass.  155 ;  Commonwealth  v.  Andre,  3  Pick.  224. 

»  Taylor  v.  Shuffold,  4  Hawks,  116;  15  Am.  Dec.  512;  Wallace  v.  Max- 
well, 10  Ired.  112;  51  Am.  Dec.  380;  Candler  v.  Lunsford,  4  Dev.  &  B.  407. 

'  Sinclair  w.  Jackson,  8  Cowen,  587;  Jackson  v.  Mills,  13  Johns.  463; 
Burchard  v.  Hubbard,  11  Ohio,  316;  Jackson  v.  Hoffman,  9  Cowen,  271. 
It  is  not  necessary  that  the  trust  should  be  expressed,  as  long  as  it  exists : 
Kelley  v.  Jeuuess,  50  Me.  455;  79  Am.  Dec.  623 


1307  COVENANTS.  S  951 

made  was  that  the  grantor  did  not  sell  all  of  the  lot,  but 
only  the  right,  title,  and  interest  which  he  then  had  in 
the  lot,  and  that  the  half  of  the  lot  was  all  tluit  was  bar- 
gained for  at  the  time,  and  that  the  covenant  related  only 
to  this,  and  was  so  understood  at  the  time  of  purchase. 
The  court,  however,  held  that  the  grantor  was  estopped 
from  ass'erting  these  facts,  as  the  word  "premises"  used 
in  the  covenant  referred  to  the  whole  of  the  lot,  and  not 
to  the  one-half.^  If,  however,  a  person  conveys  an  un- 
divided one-fourth  of  an  estate  with  a  covenant  against 
encumbrances,  and  as  guardian  of  his  minor  child,  con- 
veys to  the  same  grantee  the  remaining  three-fourths 
without  such  covenant,  the  grantee,  if  forced  to  pay  an 
assessment  of  betterments  laid  upon  the  whole  estate, 
which  became  an  encumbrance  before  the  execution  of 
the  deeds,  can  recover  from  tlie  grantor  in  an  action  on 
the  covenant  only  one-quarter  of  the  amount  altogether 
paid.^  But  a  general  covenant  will  not  enlarge  the  title 
under  a  deed  conveying  in  terms  the  grantor's  right,  title, 
and  interest,  but  will  be  confined  to  the  interest  of  the 
grantor.' 

§  951.  Estoppel  of  grrantee. — At  one  time  it  seems  to 
have  been  thought  that  a  grantee  by  accepting  the  deed 

'  Bayley  v.  McOoy,  8  Or.  259,  citing  Van  Rensselaer  v.  Kearney,  11 
How.  325;  Fairbanks  v.  Williamson,  7  Greenl.  96;  Jackson  ex  dem.  Mon- 
roe V.  Parkhurst,  9  Wend.  20'^;  Taggart  v.  Risley,  4  Or.  235;  Rawle  on 
Covenants,  388;  Jackson  v.  Waldron,  8  Wend.  178.  Mr.  Chief  Justico 
Kelly  dissented,  however,  considering  that  the  word  "premises"  diii  not 
mean  the  entire  lot,  but  only  the  interest  sold,  and  saying  that  his  posi- 
tion waa  supported  by  tlie  case  of  Sumner  v.  Williams,  8  Mass.  162;  6 
Am.  Dec.  83. 

*  Smith  V.  Carney,  127  Mass.  179. 

»  Gibson  V.  Chouteau,  39  Mo.  53G;  Kimball  v.  Scmi)le,  25  Cai.  410; 
Lee  V.  jNIoore,  14  Cal.  472;  McNear  v.  McComber,  18  Iowa,  12;  Bowt-n  v. 
Thrall,  28  Vt.  382;  Cummings  v.  Dearborn,  50  Vt.  441;  Mareh  v.  Fish, 
66  Vt.  213;  Hanrick  v.  Patrick,  119  U.  S.  156;  Bates  v.  Foster,  69  Me. 
157;  8  Am.  Rep.  406;  Bryan  v.  Uland,  101  Ind.  477;  Locke  v.  Wiiite,  89 
Ind.  492;  Habig  v.  Dodge,  127  Ind.  31 ;  Reynolds  v.  Shaver,  59  Ark.  299; 
43  Am.  St.  Rep.  36;  Koenig  v.  Branson,  73  Mo.  G.M ;  StockwoII  v.  C'dwII- 
lard,  129  Mass.  231 ;  Blanchard  v.  Brooks,  12  Pick.  47;  Allen  v.  Holton, 
20  Pick.  458. 


§  952  COVENANTS.  1308 

of  liis  grantor,  admitted  the  validity  of  his  title,  and  could 
not  show  that  it  was  defective  for  the  purpose  of  defeating 
the  wife's  right  to  dower/  But  the  principle  is  now  firmly 
established  that  the  grantee  is  not  estopped  by  the  accept- 
ance of  a  deed  from  disputing  the  grantor's  title,  either  as 
against  the  grantor  or  anyone  else.^ 

§  952.      What  covenants  will  create  an  estoppel. — An 

estoppel,  of  course,  will  arise  from  a  covenant  of  warranty, 
and  in  a  majority  of  the  States  it  is  held  that  not  only  will 
it  create  an  estoppel,  but  will  have  the  effect  of  actually 
transferring  the  estate,^  When  the  only  covenant  in  the 
deed  is  that  for  further  assurance,  this  has  been  consid- 
ered in  Wisconsin  and  Illinois  as  possessing  the  same 
power  for  the  purpose  of  creating  an  estoppel  as  the  cov- 
enant of  warranty;^  but  in  Minnesota  and  Missouri  it  is 

1  Collins  V.  Torry,  7  Johns.  278;  5  Am.  Dec.  273;  Bowne  v.  Potter,  17 
"Wend.  164;  Hitchcock  v.  Harrington,  6  Johns.  290;  5  Am.  Dec.  229; 
Sherwood  i;.  Vandenburgh,  2  Hill,  308;  Hamblin  v.  Bank  of  Cumber- 
land, 19  Me.  69;  Gayle  t;.  Price,  5  Rich.  525;  Stimpson  v.  Thomaston 
Bank,  28  Me.  259;  Hains  v.  Gardner,  1  Fain'.  383;  Davis  v.  Darrow,  12 
Wend.  65. 

*  Sparrow  V.  Kingman,  1  Comst.  245;  Finn  v.  Sleight,  8  Barb.  406; 
Gardner  v.  Greene,  5  R.  I.  104;  Clee  v.  Seaman,  21  Mich.  287;  Blair  v. 
Smith,  16  Mo.  273;  Macklot  v.  Dubreuil,  9  Mo.  483;  43  Am.  Dec.  550; 
Cutlers.  Waddingham,  33  Mo.  282;  Joeckel  v.  Easton,  11  Mo.  118;  47 
Am.  Dec.  142;  Landes  t;.  Perkins,  12  Mo.  239;  Porter  i;.  Sullivan,  7  Gray, 
441 ;  Kingman  v.  Sparrow,  12  Barb.  208;  Averill  v.  Wilson,  4  Barb.  180. 
Although  the  covenantor  may  have  obtained  a  discharge  in  bankruptcy, 
the  estoppel  arising  from  his  covenants  will  continue  to  operate  upon 
the  estate:  Stewart  v.  Anderson,  10  Ala.  510;  Bush  v.  Cooper,  26  Miss. 
599;  59  Am.  Dec.  270;  Dorsey  i;.  Gassaway,  2  Har.  &  J.  411;  3  Am.  Dec. 
557 ;  Chamberlin  v.  Meeder,  16  N.  H.  384. 

2  Kimball  v.  Blaisdell,  57  N.  H.  533;  22  Am.  Dec.  476;  Thomas  v. 
Stickle,  32  Iowa,  72 ;  Kennedy  v.  McCartney,  4  Port.  141 ;  Hoyt  v.  Diinon, 
5  Day,  479;  Thorndike  v.  Korris,  4  Fost.  (N.  H.)  454;  Dudley  t;.  Cald- 
well, i9  Conn.  226;  Jackson  v.  Winslow,  9  Cowen,  18;  Somes  v.  Skinner, 
3  Pick.  52;  Dickerson  v.  Talbot,  14  Mon.  B.  65;  Jones  v.  King,  25  111. 
384;  Lawry  «.  Williams,  13  Me.  281;  Davis  v.  Keller,  5  Rich.  Eq.  434; 
Baxter  v.  Bradbury,  20  Me.  260;  37  Am.  Dec.  49;  Williams  v.  Thurlow, 
81  Me.  395;  Blake  v.  Tucker,  12  Vt.  44;  Ruggles  v.  Barton,  13  Gray, 
506. 

*  Pierce  v.  Milwaukee  R.  R.,  24  Wis.  553;  1  Am.  Rep.  203;  Bennett 
V.  Waller,  23  111.  183. 


1309  COVENANTS.  §  953 

regarded  as  creating  only  an  equity  in  favor  of  the 
grantee,  which  he  may  enforce  by  proper  proceedings  so 
as  to  avail  himself  of  the  after-acquired  title.'  Attention 
has  already  been  called  to  the  fact  that  in  some  of  the 
States,  the  covenants  for  seisin  and  good  right  to  convey 
are  satisfied  by  the  transfer  of  a  tortious  seisin,  but  in 
Mississippi  and  New  Hampshire,  covenants  for  good  right 
to  convey  and  for  quiet  enjoyment  will  create  an  estopj^el, 
so  as  to  affect  a  subsequently  acquired  title.'' 

§  953.  Implied  covenants. — At  common  law  a  cove- 
nant of  warranty  was  implied  from  an  exchange  of  lands. 
But  to  create  this  effect  it  was  necessary  to  use  the  word 
"escambium."*  So  at  common  law  a  covenant  of  war- 
ranty was  implied  from  a  partition  between  coparceners.* 
But  it  seems  that  in  a  partition  between  joint  tenants  and 
tenants  in  common,  no  such  covenant  was  implied.*  In 
many  of  the  States  it  has  been  provided  by  statute  that 
certain  covenants  shall  be  implied  from  the  use  of  certain 
words  in  the  deed.  For  instance,  in  California,  the  use 
of  the  word  "grant"  in  a  deed  implies,  unless  restrained 
by  express  terms,  the  following  covenants:  "(1)  That 
previous  to  the  time  of  the  execution  of  such  conveyance, 
the  grantor  has  not  conveyed  the  same  estate,  or  any 
right,  title,  or  interest  thei-ein,  to  any  person  other  than 
the  grantee.  (2)  That  such  estate  is  at  the  time  of  the 
execution  of  such  conveyance  free  from  encumbrances 
done,  made,  or   suffered   by  the  grantor,  or  any  person 

»  Hope  V.  Stone,  10  Minn.  141;  Chauvin  v.  Wagner,  18  Mo.  531. 

«  Wightman  v.  Reynolds,  24  Miss.  675;  Foss  v.  ytraclnn,  42  N.  II.  40. 

»  Bustard's  case,  4  Coke,  121;  Grimea  v.  Redmon,  14  Mon.  P..  237; 
Dean  v.  Shelly,  7  Smith,  P.  F.  427;  98  Am.  Dec.  235.  And  see  Walker 
V.  Renfro,  26  Tex.  142. 

*  See  Bustard's  case,  4  Coke,  121;  Co.  Litt.  174  a;  Walker  ».  Hall, 
15  Ohio  St.  361;  86  Am.  Dec.  482;  Feather  v.  Strolioecker,  3  Pu.  508;  24 
Am.  Dec.  342. 

"  Weiser  v.  Weiner,  5  Watts,  279;  30  Am.  Dec.  313;  Canhion  v.  Faina, 
47  Mo.  133;  Rector  r.  Waugh,  17  Mo.  20;  57  Am.  Dec.  2'A  ;  Morrin  r. 
Harris,  9  Gill,  26;  Smith  v.  Sweringen,  26  Mo.  567;  Picot  v.  Page,  26  Mo. 
420.  See  Sawyers  v.  Cator,  8  Humph.  2.56,  287;  PatterHon  v.  Laiining, 
10  Watts,  135;  36  Am.  Dec.  154;  Seaton  v.  Barry,  4  Watts  <k  S.  184. 


§  054  COVENANTS.  1310 

claiming  under  him."^  Where  land  is  particularly  de- 
scribed by  metes  and  bounds,  and  an  enumeration  of  the 
quantity  of  acres  is  added,  the  latter  is  merely  a  matter 
of  description,  and  a  covenant  for  quantity  will  not  be 
implied  therefrom,  and  the  covenants  for  title  will  apply, 
not  to  any  particular  number  of  acres,  but  only  to  the 
land  contained  within  the  designated  boundaries.^  But  if 
it  is  apparent  from  the  deed  itself  that  it  was  intended  to 
assure  a  particular  quantity  of  land  to  the  purchaser  by 
the  covenants,  of  course  they  will  have  this  effect.* 

§  954.  Restriction  of  covenants. — Where  there  are 
several  covenants  having  the  same  object,  although  they 
may  be  distinct,  yet  restrictive  words  contained  in  the 
first  covenant  will  be  construed  as  extending  to  all.*  But 
a  limited  covenant  subsequently  occurring  will  not  re- 
strain the  first  covenant  if  the  latter  is  general,  unless 
this  be  the  express  intention,  or  there  is  an  inconsistency 
between  the  covenants.^     Nor  will  a    subsequent  limited 

1  Civil  Code  Cal.  §  1113.  See  Bryan  v.  Swain,  56  Cal.  616;  Lawrence 
V.  Montgomery,  37  Oal.  183;  Fowler  v.  Smith,  2  Oal.  39. 

*  Rogers  v.  Peebles,  72  Ala.  529 ;  Whitehill  v.  Gotwalt,  3  Pa.  327 ;  Per- 
kins V.  Webster,  2  N.  H.  287;  Large  v.  Penn,  6  Serg.  &  R.  488;  Tucker 
v.  Cocke,  2  Rand.  51;  Roat  v.  Puff,  3  Barb.  353;  Bauskett  v.  Jones,  2 
Spear,  68;  Mann  v.  Pearson,  2  Johns.  41;  Lorick  v.  Hawkins,  1  Rich. 
417 ;  Davis  v.  Atkins,  9  Cush.  13 ;  Belden  v.  Seymour,  8  Conn.  304 ;  21 
Am.  Dec.  661;  Ferguson  v.  Dent,  8  Mo.  667;  Whallon  v.  Kauffman,  19 
Johns.  101;  Rickets  v.  Dickens,  1  Murph.  343;  4  Am.  Dec.  555;  Huntly 
V.  Waddell,  12  Ired.  33. 

*  Steiner  v.  Baughman,  2  Jones,  106;  Morris  v.  Owens,  3  Strob.  190; 
Pecare  v.  Chouteau,  13  Mo.  527.  And  see  Kilmer  v.  Wilson,  49  Barb.  88 ; 
Long  Island  R.  R.  v.  Conklin,  32  I'arb.  388. 

*  Browning  v.  Wright,  2  Bos.  &  P.  13;  Whallon  v.  Kauffman,  19 
Johns.  98;  Foord  w.  Wilson,  8  Taunt.  543;  Davis  v.  Lyman,  6  Conn.  252; 
Miller  v.  Heller,  7  Serg.  &  R.  32 ;  10  Am.  Dec.  413 ;  Stannard  v.  Forbes, 
6  Ad.  &  E.  572.  And  see  Howell  v.  Richards,  11  East,  633;  Crossfield  v. 
Morrison,  7  Com.  B.  286;  Young  v.  Raincock,  7  Com.  B.  310;  Dickinson 
V.  Hoomes,  8  Gratt.  353;  Estabrook  v.  Smith,  6  Gray,  572;  66  Am.  Dec. 
445 ;  Bricker  v.  Bricker,  11  Ohio  St.  240 ;  Nind  v.  Marshall,  1  Brod.  &  B. 
319 ;  Duval  v.  Craig,  2  Wheat.  45 ;  Norman  v.  Foster,  1  Mod.  101 ;  Bender 
V.  Fromberger,  4  Dall.  441. 

*  Rowe  V.  Heath,  23  Tex.  619;  Gainsford  v.  Griffith,  1  Saund.  58; 
Peters  v.  Grubb,  9  Harris,  460;  Summer  v.  Williams,  8  Mass.  162;  5  Am. 


I 


1311  COVENANTS.  §  955 

covenant  be  enlarged  hj  a  preceding  general  covenant/ 
Words  of  restriction  added  to  one  covenant  do  not  affect 
the  generality  of  others  when  they  are  of  different  kinds 
and  relate  to  different  things.^ 

§  955.  liiability  of  covenantor. — If  two  or  more  per- 
sons enter  into  a  covenant,  the  obligation  which  they  as- 
sume is  generally  presumed  to  be  a  joint  one.'  To  make 
the  liability  several,  words  of  severance  should  be  used.* 
Where  the  common-law  restriction  upon  the  power  of 
married  women  to  convey  their  separate  estate  prevails, 
a  married  woman,  by  the  execution  jointly  with  her  hus- 
band of  a  deed  with  covenants  of  her  estate,  does  not  be- 
come liable  in  damages  for  a  breach  of  the  covenants.® 
Where  the  covenant  runs  with  the  land  and  the  liabihty 
of  the  covenantor  is  founded  on  privity  of  estate,  the 
action    is  local  in    its  character,    and  the  land  must  be 

Dec.  83.  And  see  Cornell  v.  Jackson,  3  Oush.  506 ;  Smith  v.  Compton,  3 
Barn.  &  Adol.  189;  Phelps  v.  Decker,  10  Mass.  267;  Cole  v.  Hawes,  2 
Johns.  Cas.  203 ;  Crum  v.  Lord,  23  Iowa,  219 ;  Attorney  General  v.  Pur- 
mort,  5  Paige,  620. 

1  Trenchard  i;.  Hoskina,  Winch.   91;  Kawle  on  Covenants  (4th  ed.), 

519. 

»  Crayford  V.  Crayford,  Cro.  Car.  106;  Kean  v.  Strong,  9  Irish   Law, 

74. 

3  Carleton  v.  Tyler,  16  Me.  392;  33  Am.  Dec.  673;  Donohue  v.  Emery, 
9  Met.  67;  Comings  i;.  Little,  24  Pick.  266;  Piatt  on  Covenants,  117; 
Shep.  Touchstone,  375 ;  Rawle  on  Covenants  (4th  ed.),  536.  Sec  Carthrae 
V.  Browne,  3  Leigh,  98 ;  23  Am.  Dec.  255 ;  Bradburne.v.  Botfluld,  14  Meea. 
&  W.  559 ;  Anderson  v.  Martindale,  1  East,  497. 

*  Fields  V.  Squires,  1  Deady,  366;  Evans  v.  Sanders,  10  Mon.  B.  291. 

^  Fowler  v.  Siiearer,  7  Mass.  21;  Aldriclge  v.  Burlison,  3  Blackf.  L'Ol ; 
Fletcher  v.  Coleman,  2  Head.  388;  Porter  v.  Bradley,  7  11.  I.  541 :  Sum- 
ner V.  Wentworth,  1  Tyler,  43;  Wadleigh  v.  (ilines,  6  N,  H.  17;  23  Am. 
Dec.  705;  Colcord  v.  Swan,  7  Mass.  291;  Whitbeck  v.  Cook,  15  Jolms. 
483;  8  Am.  Dec.  272;  Falmouth  v.  Tibbatts,  16  Mon.  B.  641;  Curd  v. 
Dodds,  6  Bush,  685;  Strawn  v.  Strawn,  50  111.  87;  Cliambors  v.  Sja-ncer, 
5  Watts,  406;  Nash  v.  Spofford,  10  Met.  192;  43  Am.  Dec.  425;  C.rpenter 
V.  Schermerhorn,  2  Barb.  Cii.  314;  Hempstead  r.  Easton,  33  Mo.  146; 
LowelU.  Daniels.  2  Gray,  168;  61  Am.  Dec.  448;  Jackson  v.  Vunder- 
heyden,  17  Johns.  167;  8  Am.  Dec.  378;  Dominick  v.  Michael,  4  Sand. 
374;  :\Iartin  v.  Dwelly,  6  Weud.  9;  21  Am.  Dec.  245;  Kunally  v.  White, 
3  Met.  (Ky.)  693. 


§§  956, 957  COVENANTS.  1312 

within  the  jurisdiction    of  the  court  in  which  the  action 
is  prosecuted.^ 

§  956.  Covenant  to  pay  mortg-ag-e. — A  grantor  may 
sue  a  grantee  who  has  taken  a  deed  with  the  stipulation 
that  he  will  pay  a  sum  due  on  a  certain  mortgage  then 
existing  on  the  property.^  "That  covenant,"  said  Mr. 
Chief  Justice  Beasley,  "is  an  absolute  one  to  pay  a  cer- 
tain sum  of  money,  and  the  obligation  to  pay  was  entirely 
disconnected  with  any  act  to  be  done,  or  with  any  event 
to  happen  in  the  future.  The  assumed  duty  was  to  pay 
the  stipulated  money  within  a  reasonable  time,  and  by 
the  failure  in  performing  that  du+'''  the  covenant  was 
broken.  As,  therefore,  on  the  breach  of  a  covenant,  the 
law  implies  nominal  damages  at  least,  actionable  miscon- 
duct on  the  part  of  the  defendant  is  shown  in  the  declara- 
tion." The  court  held  that  while  the  grantor  had  a  cause 
of  action,  yet  it  would  not  intimate  what  rate  of  damages 
should  be  awarded  to  him,  as  the  covenant  was  to  pay 
the  mortgagee  and  not  the  grantor.^ 

§  957.  Failure  of  title. — Where  there  has  been  no 
fraud,  mistake,  or  accident,  a  purchaser  who  has  taken  a 
deed  without  covenants  has  no  right,  for  a  defect  in  the 
title,  or  for  the  existence  of  an  encumbrance,  to  detain  the 
purchase   money,  or  to   recover  it  in  case  of  payment.* 

1  Clark  V.  Scudder,  6  Gray,  122;  Birney  v.  Haim,  2  Litt.  262;  Lienow 
V.  Ellis,  6  ]\Iass.  331 ;  White  v.  Sanborn,  6  N.  H.  220 ;  Mostyn  v.  Fabrigas, 
Cowp.  161 ;  1  Chitty  Pleading,  270. 

2  Golden  v.  Knapp,  41  N.  J.  L.  215. 

5  Golden  v.  Knapp,  41  N.  J.  L.  215.  And  see  "Wilcox  v.  Musche,  39 
Mich.  101. 

*  See  Falconers.  Clark,  3  Md.  Oh.  530;  7  Md.  178;  Buckner  v.  Street, 
15  Fed.  Rep.  365;  Soper  v.  Stevens,  14  Me.  133;  Peabody  v.  Phelps,  9 
Cal.  213;  Reese  v.  Gordon,  19  Cal.  147;  Young  v.  Adams,  6  Mass.  182; 
United  States  Bank  v.  Bank  of  Georgia,  10  Wheat.  333;  Doyle  v.  Knapp, 
3  Scam.  334;  Cannon  v.  White,  16  La.  Ann.  89;  Nance  v.  Elliott,  3  Ired. 
Eq.  408;  Commonwealth  v.  McClanachan,  4  Rand.  482;  Laughery  v.  Mc- 
Lean, 14  Ind.  108 ;  Lowry  v.  Brown,  1  Cold.  457 ;  Sutton  v.  Sutton,  7 
Gratt.  238;  56  Am.  Dec.  109;  Allen  v.  Pegram,  16  Iowa,  172;  Johnson «. 
Houghton,  19  Ind.  361;  Starkey  v.  Neese,  30  Ind.  224;  Beale  v.  Sieveley, 
8  Leigh,  658;  Carr  v.  Roach,  2  Duer,  20;  Middle  Kauf  v.  Barrick,  4  Gill. 


1313  COVENANTS.  §  957 

The  prior  contract  for  the  purchase  is  merged  in  the  deed, 
and  resort  must  be  had  to  that  to  determine  the  rights  of 
the  parties/ 

300;  Butman  v.  Hussey,  30  Me.  266;  Frost  v.  Raymond,  2  Cainea,  192; 
2  Am.  Dec.  228;  Harris  v.  Morris,  4  Md.  Cii.  530;  Condrey  v.  West,  11 
111.  14'';  Brandt  v.  Foster,  5  Clarke,  293;  Maney  v.  Porter,  3  Humph. 
347;  Williamson  v.  Rauey,  1  Freem.  Ch.  114;  Alexander  v.  McCauley, 
22  Ark.  533 ;  Butler  v.  Miller,  15  Mon.  B.  627 ;  Allen  v.  Hopson,  1  Freem. 
Ch.  276;  Earle  v.  De  Witt,  6  Allen,  526;  Abbott  v.  Allen,  2  Johns.  Ch. 
519 ;  7  Am.  Dec.  554 ;  Price  v.  Neale,  3  Burr.  1355 ;  Jones  v.  Ryde,  5 
Taunt.  488 ;  Smith  v.  JVIercer,  6  Taunt.  76. 

^  Seitzinger  v.  Weaver,  1  Rawle,  377 ;  Ludwick  v.  Huntzinger,  5  Watts 
<feS.  51;  Griffith  v.  Kempshall,  1   Clarke  Ch.  571;  Howes  v.  Barker,  3 
Johns.  506;  3  Am.  Dec.  526;  Coleman  v.  Hart,  25  Ind.  256;  Bull  v.  Wil- 
lard,  9  Barb.  642;  Houghtaling  v.  Lewis,  10  Johns.  297. 
Deeds,  Vol.  II. —83 


b 


CHAPTER  XXVII. 

CONDITIONS,   LIMITATIONS,   RESERVATIONS,  EXCEPTIONS, 
RESTRICTIONS,  AND  STIPULATIONS. 

§  958.    Distinction  between  conditions  precedent  and  suibsequent. 

§  959.    Fee  passes  upon  oondition  subsequent. 

§  960.    Absolute  deed  with  subsequent  grant  on  condition. 

§  961.    Subsequent  impossibility. 

§  962.    Prevention  of  performance  of  condition. 

§  963.    'Condition  against  sale  of  intoxicating  liquors. 

§  963  a.  Oonsiruction  of  clauses  against  sale  of  liquors. 

§  964.    Conditions  precedent. 

§  965.    Restraint  on  alienation. 

§  906.    Restraint  upon  partition  by  tenants  in  common. 

§  967.    Coudition  against  putting  in  windows. 

§  968.    Use  of  buildings  for  certain  purposes. 

§  968a.  Enforcing  personal  contract  of  grantor  against  grantee  with 

notice. 
§  969.    Who  may  take  advantage  of  breach. 
§  970.    Conditions  subsequent  strictly  construed. 
§  971.    Some  instances  of  construction. 
§  972.    Time  for  performance  of  condition. 
§  978.    Clear  proof  of  forfeiture. 

§  974.    Distinction  between  conditions  and  limitations. 
§  975.    Appraisement  of  improvements. 
§  975  a.  Where  tlie  estate  conveyed  is  less  than  the  fee. 
§  976.    Parol  condition. 
§  977.     Effect  of  restriction. 

§  978.     Deed  in  consideration  of  certain  agreements. 
§  979.    Reservations  and  exceptions. 
§  980.    Construing  a  reservation  as  an  exception. 
§  980  a.  Title  founded  on  an  exception. 
§  981.    Reservation  by  tenant  in  common. 
§  982.    Reservation  to  tliird  person. 
§  983.    Reservation  of  support  in  deed  to  trustees. 
§  984.    Reservation  of  plants  making  them  personal  property. 
§  985.    Right  of  way. 
§  985  a.  Riglit  to  pass  reserved  merely. 
§  986.    Maintenance  of  tollhouse. 
§  987.    Unincorporated  town. 
§  988.    Passageway. 

(1314) 


13^^  CONDITIONS,    LIMITATIONS,    ETC.  §  953 

§  989.     Confifrnetion  in  particular  eases. 

§  990.    Restrictions  and  stipulations. 

§  990  a.  Offensive  occupations. 

§  990  b.  Building  lines. 

§  990  c.  Extension  of  room,  window,  or  piaeza, 

§  '>90d.Bay  windows. 

§  991.    Removal  of  restriction. 

§  991  a.  Reasonable  construction. 

§  991  b.  Public  policy. 

§  991  c.  Changed  conditions  of  city. 

§  958,  Distinction  between  conditions  precedent  and 
subsequent. — If  land  is  conveyed  upon  a  condition  pre- 
cedent, the  title  will  not  pass  until  the  performance  of  the 
condition.  But  if  the  condition  is  subsequent,  the  title 
passes  at  the  time  at  which  the  deed  is  executed  and  de- 
livered.^ Whether  a  covenant  is  to  be  deemed  precedent 
or  subsequent  depends  upon  the  intention  of  the  parties 
as  shown  by  the  instrument,  and  not  upon  the  use  of  any 
particular  set  of  technical  words.^  A  deed  was  made  with 
the  condition  that  the  grantees  should  build  and  main- 
tain a  dam  over  a  certain  brook  crossing  the  land  em- 
braced in  the  deed,  and  that  such  dam  with  its  floodgates 
and  sluiceways  might  be  used  by  the  grantors  for  hy- 
draulic purposes.  It  was  also  covenanted  that  if  the 
grantors  sustained  any  damages  in  case  of  a  break  in  the 
dam  or  an  overflow,  the  grantees  should  not  be  liable  un- 
less the  same  happened  through  their  gross  negligence. 
In  this  case,  the  condition  did  not  necessarily  precede  the 
vesting  of  the  estate,  but  might  accompany  or  follow  it, 
and  the  court  held  that  the  condition  was  subsequent,  and 
that  the  deed  passed  the  fee  simple  subject  to  be  divested 
by  a  neglect  or  refusal  to  perform  the  condition.^  Where 
an  instrument  commencing  in  the  ordinary  form  of  a 
bargain  and  sale  deed,  and  purporting  to  convey  to  tho 

1  Sheppard  v.  Thomas,  26  Ark.  617. 

»  Underbill  v.  The  Saratoga  &  Washington  R.  R.  Co.,  20  Barb.  556; 
Shinn  v.  Roberts,  20  N.  J.  L.  (Spencer),  4:i5;  43  Am.  Dec.  fi.W;  Uogiin  v. 
Walker,  1  Wis.  527.  This  section  was  quoted  as  autliority  in  Tho  llaiik 
of  Suisun  V.  Stark,  106  Cal.  202. 

*  Uuderhill  v.  The_ Saratoga  &  Washington  li.  K.  Co.,  -U  Barb.  050. 


§  959  CONDITIONS,    LIMITATIONS,    ETC.  1316 

grantees  in  consideration  of  a  sura  of  money  certain  land, 
and  autliorizing  the  grantees  to  take  possession,  sell,  and 
convey  or  lease  the  property  in  the  name  of  the  grantor, 
and  to  receive  the  purchase  money  and  rent,  declared 
that  the  grantor  would  not  sell  the  property  or  revoke  the 
power  unless  the  grantees  neglected  to  pay  the  sura  speci- 
fied, and  contained  a  covenant  that  if  payment  was  made 
at  the  stipulated  time  the  instrument  should  operate  as  a 
full  conveyance,  which  effect  it  should  also  have  if  the 
grantor  failed  to  fulfill  his  part  of  the  agreement,  such 
instrument  is  intended  as  a  conveyance  upon  condition 
precedent.  Until  performance  of  the  condition,  the 
grantees  can  acquire  no  title,  but  when  performed,  the 
grantees'  title  is  complete  without  further  action  by 
the  grantor.^ 

§  959.     Fee   passes  upon  condition   subsequent. — The 

fee  passes  by  a  deed  upon  a  condition  subsequent,  in  the 
same  manner  and  to  the  same  extent  as  if  the  condition 
did  not  exist  subject  to  the  contingency  of  being  defeated 
as  provided  in  the  condition,  the  grantor  possessing  a 
right  of  entry  upon  condition  broken.^  This  is  true,  even 
where  a  homestead  is  conveyed  upon  condition  that  the 
grantee  shall  make  certiin  specified  payments,  and  the 
deed  provides  that  when  the  conditions  have  been  per- 
formed the  title  shall  vest  in  the  grantee  absolutely.^  The 
word  "family,"  where  a  deed  is  made  on  condition  that 

'  Brannan  v.  Mesick,  10  Cal.  95.  See  Mesick  v.  Sunderland,  6  Cal. 
297.  See,  also,  Cheete  v.  Washburn,  44  Minn.  312.  It  is  a  question  of 
intention  whether  a  condition  is  precedent  or  subsequent,  and  this  in- 
tention is  to  be  derived  from  the  deed  as  a  whole  :  Mesick  v.  Sunderland, 
6  Cal.  297;  Blacksmith  v.  Fellows,  7  N.  Y.  401;  Martin  v.  Ballon,  13 
Barb.  119;  Finlay  v.  King,  3  Pet.  346 ;  Ohapin  v.  School  District,  35  N.  H. 
445;  Rogan  «.  Walker,  1  Wis.  527;  Home  v.  Dorrance,  2  Dall.  304;  Raley 
V.  Umatilla  Co.,  15  Or.  172;  3  Am.  St.  Eep.  142;  13  Pac.  Rep.  890;  Jones 
V.  Chesapeake  &  0.  R.  Co.,  14  W.  Va.  514 ;  Shinn  v.  Roberts,  20  N.  J.  L. 
435;  43  Am.  Dec.  636;  Osgood  v.  Abbott,  58  Me.  73. 

^  Memphis  &  Charleston  R.  R.  Co.  v.  Neighbors,  51  Miss.  412 ;  Spect  v. 
Gregg,  51  Cal.  198.  See  Spofford  v.  True,  33  Me.  283;  54  Am.  Dec.  621; 
Evenson  v.  Webster,  3  S.  Dak.  382;  44  Am.  St.  Rep.  802. 

»  The  BaHk  of  Suisun  v.  Stark,  106  Cal.  202. 


L 


1317  CONDITIONS,    LIMITATIONS,    ETC.  §  959 

the  grantor  and  liis  family  should  have  free  passage  from 
a  railroad  company,  means  those  living  in  the  grantor's 
liouse  and  under  his  management,  and  does  not  include 
a  granddaughter  not  living  with  him,'  A,  who  was  the 
owner  of  a  lot,  gave  a  hond  to  li,  hy  which  he  ohligated 
himself  to  convey  the  lot  to  B,  whenever  the  latter  should 
convey  to  A  or  his  assigns  a  certain  other  lot.  A  suhse- 
quently  executed  a  deed  to  C  of  the  lot,  on  condition  that 
the  grantee  should  convey  it  to  B  whenever  B  tendered  a 
like  deed  of  the  lot  to  he  granted  as  provided  in  the  hond 
and  took  back  a  mortgage  upon  it  with  the  same  condi- 
tion inserted.  At  the  same  time  that  C  executed  the 
mortgage  to  A,  he  executed  a  warranty  deed  to  B  contain- 
ing the  clause  "for  conditions  and  obligations  see  said 
deed  from  A  to  me,"  but  did  not  receive  the  other  lot  in 
exchange.  It  was  held  that  A's  deed  to  C  passed  the  title 
subject  only  to  defeasance  upon  breach  of  the  condition, 
and  that  C's  deed  to  B  conveyed  the  lot  subject  to  the 
mortgage  from  C  to  A.^  After  the  breach  of  a  condition 
subsequent,  the  estate  vested  in  the  grantee  is  not  divested 
at  common  law  until  an  actual  entry  by  one  having  the 
right  to  enter  for  the  forfeiture.'  At  the  present  day  an 
action  of  ejectment  would  have  the  same  elfect.''  The 
waiver  of  a  forfeiture  may  be  inferred  from  the  neglect  of 
the  party  entitled  to  the  estate  to  assert  his  claim  iu  a 

'  Doflge  V.  Boston  etc.  Ry.  Co.,  154  Mass.  299. 
»  Hliattuck  V.  IfafitingH,  99  Maps.  23. 

•  Willard  v.  Ifenry,  2  N.  H.  120;  Osgood  v.  Abbott,  58  Mc,  73;  CroBB 
V.  ('arson,  8  Blackf.  138;  44  Am.  Dec.  742;  Hubbard  r.  Hubbard,  97 
MaHH.  188;  93  Am.  Dec.  75;  Cbalker  v.  Chalkcr,  1  Coiui.  79;  (J  Am.  Dec. 
200;  Kenner  v.  American  Contract  Co.,  9  BuHb,  202;  ThelpHt;.  (JbcHHon, 
12  Ired.  194.  Ari<l  see  Tliomas  v.  Kecord,  47  Me.  500;  74  Am.  Dec.  500; 
Ctiapman  v.  Pint,'ree,  67  Me.  198;  Guild  v.  Richards,  Ui  (Jray.  :i09; 
Memphis  R.  R.  Co.  v.  NeighborH,  51  Miss.  412;  Chalkor  »;.  Chalker,  1 
Conn.  79;  6  Am.  Dec.  206;  Frost  v.  Butler,  7  Green!.  225;  22  Am.  Dec. 
199. 

*  Osgood  V.  Abbott,  58  Me.  73;  Green  v.  Pettingil],  47  N.  H.  375;  93 
Am.  Dec.  444.  And  see  McKelway  v.  Seymour,  29  N.  J.  L.  321 ;  8tearnB 
V.  Harris,  8  Allen,  598;  Austin  v.  Cambridgeport  Parisli,  21  I'ick.  224; 
Tallrnan  v.  8now,  .35  Me.  342;  Canal  Co.  v.  Railroad  Co.,  4  Gill.  &  J.  1, 
121 ;  Cory  v.  Cory,  86  Ind.  567. 


§  060  CONDITIONS,    LIMITATIONS,    ETC.  1318 

reasonable  time  after  the  termination  of  the  estate.^ 
Where  land  was  conveyed  on  condition  that  it  should  be 
used  for  a  burying  ground,  and  that  the  grantee  should 
erect  and  maintain  a  fence  around  the  land,  and  where  it 
was  used  for  the  purposes  intended  for  many  years,  but 
no  fence  had  ever  been  erected,  and  no  complaint  had 
ever  been  made  of  the  failure  to  build  the  fence,  it  was 
said  to  be  too  late  for  the  successor  in  interest  of  the  gran- 
tor to  enter  for  breach  of  the  condition.^ 

§  960.  Absolute  deed  with  subsequent  grant  on 
condition.  —  An  absolute  deed  of  land  conveys  the  title  to 
the  grantee.  If  the  grantor  subsequently  executes  a  con- 
veyance to  the  grantee  or  the  latter's  grantee  charged  with 
conditions,  the  conditions  can  have  no  operative  effect, 
because  there  is  no    estate  remaining  in  the  grantor.^ 

^  Kenner  v.  American  Contract  Co.,  9  Bush,  202  j  Willard  v.  Henry,  2 
N.  H.  120;  Ludlow  V.  New  York  etc.  R.  R.,  12  Barb.  440;  Hooper  v. 
Cummings,  45  Me.  359.  In  the  case  first  cited  the  court  said:  "The 
more  modern  authorities  on  the  subject  of  such  forfeitures  establish  the 
doctrine  that  it  is  with  the  party  in  whose  favor  the  condition  is,  or  who 
becomes  entitled  to  the  estate  by  reason  of  the  forfeiture,  to  say  whether 
the  estate  shall  be  forfeited  or  not;  and  although  the  user  from  which 
the  grant  of  a  public  passway  may  be  implied  must  have  continued  for  a 
period  required  to  toll  the  right  of  entry  in  ejectment,  the  waiver  of  a 
forfeiture  may  nevertheless  be  inferred  by  reason  of  the  failure  of  the 
party  entitled  to  the  estate  to  re-enter  or  assert  some  claim  in  a  reason- 
able time  terminating  the  estate;  and  particularly  in  a  case  where  the 
party  to  whom  the  grant  is  made  is  permitted  to  use  and  make  valuable 
improvements  on  the  premises  after  the  condition  is  broken.  The  courts 
adjudge  the  waiver  of  the  forfeiture  upon  the  principle  that  the  happen- 
ing of  the  condition  does  not  ipso  facto  determine  the  estate,  the  same 
remaining  in  the  grantee,  but  only  subjects  it  to  be  defeated  at  the  elec- 
tion of  the  grantor  and  his  heirs,  etc ;  and  for  the  additional  reason  that 
the  forfeitures  of  estates  are  not  favored  either  in  courts  of  law  or  equity." 
See  Jackson  v.  Crysler,  1  Johns.  126;  Doe  v.  Gladwin,  6  Q.  B.  (51  Eng. 
O.  L.)  953;  Williams  v.  Dakin,  22  Wend.  209;  Sharon  Iron  Co.  v.  City 
of  Erie,  41  Pa.  St.  349 ;  Gray  v.  Blanchard,  8  Pick.  284.  But  a  mere  ac- 
quiescence in  the  breach  of  a  condition  without  a  license  would  not  con- 
stitute a  waiver  of  subsequent  breaches  :  Hubbard  v.  Hubbard,  97  Mass. 
192;  93  Am.  Dec.  75;  Guild  v.  Richards,  16  Gray,  326:  Andrews  v.  Sen- 
ter,  32  Me.  397 ;  Gray  v.  Blanchard,  8  Pick.  284 ;  Cleveland  etc.  Ry.  Co. 
V.  Ooburn,  91  Ind.  557. 

2  Scovill  V.  McMahon,  62  Conn.  378;  36  Am.  St.  Rep.  350. 

«  Alemy  v.  Duly,  36  Cal.  90. 


1319  CONDITIONS,    LIMITATIONS,    ETC.  §  QGl 

§961.  Subsequent  impossibility.  —  Conditions  sub- 
sequent, incapable  of  execution  at  the  time  at  which  they 
are  made,  or  subsequent!}^  becoming  impossible,  either 
by  the  act  of  God  or  of  law,  do  not  have  the  effect  of 
divesting  the  estate  vested  in  the  grantee.  As  the  con- 
dition cannot  be  performed,  the  grantee  is  not  at 
fault.^  If  at  the  time  of  the  execution  of  an  absolute 
deed  the  grantee  delivers  a  writing  to  the  grantor,  stating 
that  the  "deed  shall  be  null  and  void,"  unless  the  grantee 
shall  procure  two  witnesses  to  testify  to  certain  things, 
and  that  in  ease  he  succeeds  in  obtaining  such  witnesses 
the  deed  shall  operate  only  as  a  mortgage,  the  legal  title 
has  been  conveyed  with  an  unlawful  condition  subsequent. 
In  such  a  case  the  grantor  must  bear  the  loss.  He  can 
neither  in  law  nor  in  equity  recover  the  title.^  But  if  the 
grantor  purchases  the  land  back,  and  executes  a  mort- 
gage as  security  for  the  payment  of  the  purchase  money, 
be  cannot  defeat  the  enforcement  of  the  mortgage  for  the 
reason  that  the  condition  subsequent  was  against  public 
policy,  or  that  there  was  no  consideration.^  Where  a 
husband  and  wife,  grantors,  execute  a  conveyance  with 
the  condition  that  they  shall  retain  the  entire  use  and 
control  of  the  property  so  long  as  they,  or  eitlier  of  them, 
shall  live,  a  court  of  equity  has  power  to  determine  the 
rights  of  the  parties,  and  for  the  purpose  of  preventing 

1  Merrill  v.  Emory,  10  Pick.  507;  Taylor  v.  Stratton,  15  Ga.  10:^;  00 
Am.  Dec.  682;  United  States  w.  Arredondo,  6  Pet.  691;  Hiigijes  v.  Ed- 
wards, 9  Wheat.  489;  Taylor  v.  Sutton,  15  Ga.  103;  60  Am.  Dec.  6H2. 
See  Barksdale  v.  Elam,  30  Miss.  694;  Brandon  v.  Robinson,  1^  Ves.  428; 
Blackstone  Bank  v.  Davis,  12  Pick.  42;  32  Am.  Doc.  241;  Jonos  v.  Doo, 
2  111.276;  Bradley  v.  Peixoto,  3  Ves.  324;  Gadberry  v.  Sbci)|.ar.l,  27 
Miss.  203;  Badlam  v.  Tucker,  1  Pick.  284;  11  Am.  Dec.  202;  Davis  v. 
Gray,  16  Wall.  203;  Rogers  v.  Sebastian  Co.,  21  Ark.  440;  r.nriiham  v. 
Burnham,  79  Wis.  557 ;  48  X.  W.  Rep.  661;  Culin's  Appeal,  20  I'a.  St. 
243;  Whitney  v.  Spencer,  4  Cow.  30;  Jones  v.  Walker,  13  B.  .Mnn.  163; 
56  Am.  Dec.  557;  Randall  v.  Marble,  69  Me.  310;  31  Am,  K.-p.  2HI; 
Jones  i;.  Chesapeake  etc.  R.  R.  Co.,  14  W.  Va.  514;  Lambi;.  Miller.  IHVa. 
St.  448;  Morse  t).  Hayden,  82' Mc.  227;  Martin  v.  r.alloii,  13  Harb.  119; 
Parker  v.  Parker,  123  Mass.  584 ;  Wbeeler  v.  Moody,  9  Tex.  372. 

'  Patterson  v.  Donner,  48  Cal.  369. 

»  Patterson  v.  Donner,  48  Cal.  369. 


§   9G2  CONDITIONS,    LIMITATIONS,    ETC.  1320 

future  complications  may  decree  the  execution  of  a  formal 
conveyance  of  the  fee  from  the  grantors  to  the  grartee, 
and  a  reconveyance  by  the  latter  for  the  lives  of  the 
grantors.^  A  condition  repugnant  to  the  grant  is  void.'' 
Where  a  deed  is  made  on  the  condition  subsequent  that 
the  premises  should  be  used  as  a  cemetery,  and  an  act  of 
the  legislature  renders  further  performance  of  the  con- 
dition unlawful,  the  condition  is  discharged,  and  the  title 
of  the  grantee  is  no  longer  subject  to  it.^ 

§   963.      Prevention    of   performance    of    condition. — 

Where  the  grantor  prevents  the  performance  of  a  condi- 
tion, its  nonperformance  will  be  excused.'*  Where  a 
grantor  conveyed  an  undivided  third  of  a  tract  of  land, 
upon  the  condition  that  the  grantee  should  proceed  to  re- 
cover the  possession  of  the  lot  at  his  own  expense,  by 
legal  proceedings,  and  the  grantee  employed  a  competent 
attorney,  who  assumed  the  management  of  an  action  then 
pending  against  the  parties  in  the  possession  of  the  land, 
and  subsequently,  on  the  motion  of  the  grantor,  and 
against  the  wishes  of  the  grantee  and  his  attorney,  an- 
other attorney  was  substituted,  who  dismissed  the  action 
and  instituted  another  in  which  the  possession  of  the  land 
was  recovered,  it  was  held  that  the  actions  of  the  grantor 
excused  the  nonperformance  of  the  condition  by  the 
grantee,^ 

1  Chandler  v.  Chandler,  55  Cal.  267. 

2  Littlefield  v.  Mott,  14  R.  I.  288;  Pynchon  v.  Stearns,  11  Met.  312; 
45  Am.  Dec.  210;  Gadberry  v.  Sheppard,  27  Miss.  203  ;  Taylor  v.  Sutton, 
15  Ga.  103;  60  Am.  Dec.  682;  Bassett  v.  Budlong,  77  Mich.  338;  18  Am. 
St.  Rep.  404. 

*  Scovill  V.  McMahon,  62  Conn.  378;  36  Am.  St.  Rep.  350.  See,  also, 
Ricketts  v.  Louisville  etc.  Ry.  Co.,  91  Ky.  221:  34  Am.  St.  Rep.  176. 

*  Jones  V.  Chesapeake  &  Ohio  R.  R.  Co.,  14  W.  Va.  514;  Houghton  v. 
Steele,  58  Cal.  421,  and  cases  cited;  Jones  v.  Walker,  13  B.  Mon.  163;  56 
Am.  Dec.  557;  Mezell  v.  Burnett,  4  Jones  L.  249;  69  Am.  Dec.  744;  Elk- 
hart Car  Co.  V.  Ellis,  113  Ind.  215;  15  N.  E.  Rep.  249;  Young  v.  Hunter, 
6  N.  Y.  203;  Leonard  v.  Smith,  80  Iowa,  194;  Gray  v.  Blanchard,  8  Pick. 
284. 

*  Houghton  V.  Steele,  58  Cal.  421,  A  grantor  cannot,  after  the  execu- 
tion and  delivery  of  a  deed,  impose  conditions,  for  he  then  has  no  estate: 
Alemany  v.   Daly,  36  Cal.  90.     The  condition  must  be  expressed  in  the 


1321  CONDITIONS,   LIMITATIONS,    ETC.      §§  963,  963  a 

§  963.      Condition  against  sale  of  intoxicating  liquors. 

A  condition  inserted  in  a  deed  that  intoxicating  liquors 
shall  never  be  manufactured  or  sold,  or  disposed  of  as  a 
beverage  in  any  place  of  public  resort  upon  the  land  con- 
veyed by  the  deed,  and  providing  that  in  case  of  a 
breach  of  the  condition  by  the  grantee  or  his  assigns,  the 
deed  shall  become  null  and  void,  and  the  title  thereupon 
shall  revert  to  the  grantor,  is  not  repugnant  to  the  estate 
granted,  nor  is  it  unlawful  or  against  public  policy.^  In 
a  suit  to  obtain  the  benefit  of  the  forfeiture,  the  grantee 
is  estopped  from  denying  the  validity  of  the  title  conveyed 
by  the  deed  under  which  he  acquired  possession.^  Such 
a  condition,  until  broken,  runs  with  the  land.*  No  for- 
feiture will  occur  by  reason  of  a  sale  which  is  not  charge- 
able to  the  fault  or  negligence  of  the  grantee,  and  the 
question  of  the  grantee's  knowledge  or  negligence  is  one 
of  fact.^  A  condition  of  this  character  is  a  condition 
subsequent.* 

§  9C>3a.      Construction    of    clauses    against    sale    of 
liquors. — A    condition    against   the    sale  of  intoxicating 

deed  or  in  some  writing  referring  to  it:  Thompson  v.  Thompson,  0  Ind. 
.''.23;  68  Am.  Dec.  638;  Scantlin  v.  Garvin,  46  Ind.  262;  Marsliall  Co. 
High  School  V.  Iowa  Synod,  28  Iowa,  360;  Schwalbach  v.  Chica-,'o  M.  & 
St.  P.  Ry.  Co.,  73  Wis.  137;  Moser  v.  Miller,  7  Watts,  156;  Galveston 
etc.  Ry.  Co.  v.  Pfeuffer,  59  Tex.  66;  Gadberry  v.  Sheppard,  27  Miss. 
203.  A  deed  by  referring  to  another  instrument  containing  a  condition 
may,  by  reference,  adopt  the  condition:  Bear  v.  Whisler,  7  Watts,  ]44; 
Merritt  v.  Harris,  102  Mass.  326. 

1  Cowell  V.  Springs  Co.,  100  U.  S.  55;  Plumb  v.  Tubbs,  41  N.  Y. 
442;  Collins  v.  Marcy,  25  Conn.  242;  O'Brien  v.  Wetherell,  14  Kan.  616; 
Jenks  V.  Pawlowski,  98  Mich.  110;  39  Am.  St.  Rep.  522;  Bad  River 
Lumbering  etc.  Co.  v.  Kaiser,  82  Wis.  116;  33  Am.  St.  Rep.  29;  Chi|.pcwa 
Lumber  Co.  v.  Tremper,  75  Mich.  36;  13  Am.  St.  Rep.  420;  Sioux  City 
etc.  R.  R.  Co.  V.  Singer,  49  Minn.  301;  32  Am.  St.  Rep.  554;  Smith  r. 
Barrie,  56  Mich.  314;  56  Am.  Rep.  391;  Lehigh  Coal  etc  Co.  v.  Karly, 
162  Pa.  St.  338;  29  Atl.  Rep.  736;  Odessa  Imf)royemcnt  Co.  v.  Duweon, 
5  Tex.  Civ.  App.  487. 

»  Cowell  V.  Springs  Co.,  100  U.  S.  55. 

»  O'Brien  v.  AVethcrell,  14  Kan.  616. 

*  Collins  V.  Marcy,  25  Conn.  242.  And  see,  also,  Barrie  r.  Smith,  47 
Mich.  130. 

^  Jeffrey  v.  Graham,  61  Tex.  481. 


§  964  CONDITIONS,    LIMITATIONS,    ETC.  1322 

liquors,  when  not  inserted  in  a  deed,  for  an  honest  purpose, 
but  to  enable  the  grantor  to  secure  a  monopoly  of  the  busi- 
ness of  liquor  selling  will  not  be  enforced.*  A  clause: 
"  Provided  always,  and  these  presents  are  upon  the  ex- 
press condition  that  the  aforesaid  premises  shall  not  be, 
nor  shall  any  part  thereof,  or  any  building  or  buildings 
thereon  erected  or  to  be  erected,  be  at  any  time  hereafter 
used  or  occupied  as  a  tavern  or  public  house  of  any  kind," 
will  be  construed  as  a  mere  covenant,  and  not  as  a  condi- 
tion subsequent,  a  breach  of  which  will  defeat  the  title.^ 
By  an  agreement  not  to  use  a  drugstore  for  the  sale  of 
intoxicating  liquors,  the  keeping  of  a  drugstore  where 
liquors  are  sold  in  the  manner  usual  with  druggists,  but 
not  to  be  drunk  upon  the  premises,  is  not  prohibited.' 
Where  one  parcel  of  land  is  conveyed  with  a  restriction 
against  the  sale  of  intoxicating  liquors,  and  the  grantor 
subsequently  conveys  adjoining  land  to  another  without 
such  restriction,  he  waives  the  right  to  enforce  the  re- 
striction contained  in  the  first  deed,  even  though  the 
omission  of  the  restriction  in  the  second  deed  was  by 
mistake,  if  no  step  has  been  taken  to  correct  the  mistake.* 
Such  a  condition  is  valid,  though  such  sales  are  not  illegal.* 

§  964.  Conditions  precedent. — A  condition  precedent 
is  one  that  must  take  effect  befipre  the  estate  can  vest.  If 
a  condition  precedent  is  impossible  from  the  beginning, 
or  for  any  reason  incapable  of  performance,  the  estate 
will  not  vest.^  A  condition  "that  this  deed  is  to  have 
effect  and  be  operative  only  upon  the  express  condition 

*  Chippewa  Lumber  Co.  v.  Tremper,  76  Mich.  36;  13  Am.  St.  Rep. 
420. 

^  Post  V.  Weil,  115  N.  Y.  361;  12  Am.  St.  Rep.  809. 
»  Hall  V.  Solomon,  61  Conn.  476;  29  Am.  St.  Rep.  218. 

*  Jenks  V.  Pawlowski,  98  Mich.  110;  39  Am.  St.  Rep.  522. 

*  Smith  V.  Barrie,  56  Mich.  314 ;  56  Am.  Rep.  391. 

«  Harvey  v.  Aston,  1  Atk.  374 ;  Vanhorne's  Lessee  v.  Dorrance,  2  Dall. 
817;  Mizell  t;.  Burnett,  4  Jones  (N.  C),  249;  69  Am.  Dec.  744;  Martin  «. 
Ballon,  13  Barb.  119;  Taylor  v.  Mason,  9  Wheat.  325.  And  see  Bertie 
V.  Falkland,  Freem.  Ch.  220;  Scott  v.  Tyler,  2  Bro.  C.  0.  431;  Dunlapi;. 
Mobley,  71  Ala.  102. 


1323  CONDITIONS,    LIMITATIONS,    ETC.  §  965 

and  understanding  "  that  certain  things  shall  first  be  done, 
is   a  condition    precedent.^     Where   a   father  executes  a 
deed  of  gift  of  eight  undivided  ninths  of  a  tract  of  land, 
reserving  to  himself  one-ninth,  to  be  laid  out  on  the  per- 
tion  on  which  he  resided,  the  actual  location  of  the  ninth 
so  reserved  is  not  a  condition  precedent  to  the  operation 
of  the  deed  as  to  the  undivided  portions  conveyed  to  the 
children.^     Where  a  deed  of  a  block  of  land  to  a  city,  to 
be  kept  as  an   ornamental  square,  and  for  the  erection  of 
public  buildings,   contains  this    proviso:   "Provided   the 
city,  by  its  legal  representatives,  obtains  authority  from 
the  legislature  of  this  State,  and  makes  the  necessary  re- 
movals of  the  dead   from  the   said    block  Avithin  twelve 
months  from  the  first  day  of  January,  A.  D.,  1891,"  the 
deed  is  to  be  construed  as  made  upon  a  condition   prece- 
dent, and  if  the  city  fails  to  perform  the  condition,  no 
title  vests  in  the  city.' 

§  965.  Restraint  on  alienation. — A  condition  may  be 
imposed  in  a  deed  on  the  power  of  alienation  in  certain 
cases,  as  that  the  land  shall  not  be  conveyed  before  a  cer. 
tain  date  or  to  a  certain  person.^  But  an  absolute  restric- 
tion on  the  power  of  alienation  or  a  condition  forbidding 
the  marriage  of  the  grantee  is  void.*     A  condition  in  a 

1  Tennessee  &  Coosa  R.  R.  Co.  v.  East  Alabama  Ry.  Co.,  73  Ala.  126. 

'  Salmon  v.  Wilson,  41  Cal.  595. 

»  f^tockton  V.  Weber, 98  Cal.  433.  See,  also,  Jones  v.  Bramblet,  2  III. 
276;  Blean  v.  Messenger,  33  N.  J.  L.  499. 

*  Attwater  v.  Attwater,  18  Beav.  330;  Hunt  v.  Wright.  47  N.  11.  39«; 
93  Am.  Dec.  451.  And  see  McWilliaraa  v.  Nisley,  2  Serg.  &  R.  513 ;  7  Am. 
Dec.  654;  Stewart  v.  Brady,  3  Bush,  623;  Shackleford  v.  Hall,  19  III.  212; 
Doujral  v.  Fryer,  3  Mo.  40;  22  Am.  Dec.  458. 

"  Murray  v.  Green,  64  Cal.  363;  McCleary  v.  Ellis,  54  Iowa,  311  ;  37 
Am.  Rep.  205;  Anglesea  v.  Church  Wardens,  6  Q.  B.  114;  Blackulono 
Bank  v.  Davis.  21  Pick.  42;  32  Am.  Dec.  241;  Taylor  v.  Sutton.  15  (Ju. 
103;60  Am.  Dec.  682;  Brandon d.  Robinson,  18  Vea.  429;  Hall  r.  Tnffts, 
18  rick.  455;  De  Pevster  ?;.  Michael,  6  N.  Y.  467;  57  Am.  Doc.  470;  Will- 
iams v.  Cowden,  13  Mo.  211;  53  Am.  Dec.  143;  Walker  v.  Vincent,  19 
Pa.  St.  309;  Schermerhorn  v.  Negus,  1  Denio,  448;  Willis  v.  Hiscox,  4 
Mylne  &C.  197;  Munroe  v.  Hall,  97  N.  C  206;  Dick  v.  Pithfonl,  1  Dcv. 
&  B.  Eq.  480;  Pritchard  v.  Bailey,  113  N.  O.  621;  18  H.  E.  Rep.  668; 
Hardy  j;.  Galloway,  HI  N.  C.  519;  32  Am.  St.  Kcp.  828;  15  S.  E.  Rep. 


§  966  CONDITIONS,    LIMITATIONS,    ETC.  1324 

deed  made  in  consideration  of  love  and  affection,  conve}''- 
ing  an  absolute  fee,  that  if  the  land  is  not  disposed  of 
during  the  grantee's  lifetime  it  shall  revert  to  the  grantor, 
is  repugnant  to  the  grant,  and  void.^  A  condition  that  a 
failure  to  pay  the  purchase  money  shall  render  the  deed 
void,  is  not  void  as  repugnant  to  the  grant.^  A  condi- 
tion in  a  deed  conveying  a  life  estate,  with  remainder  in 
fee  to  the  grantee's  children,  or  in  case  of  his  death,  to 
otljers,  which  forbids  the  grantee  to  convey  his  interest, 
and  prohibits  the  sale  of  it  for  his  debts,  is  void.^  In 
California,  the  rule  that  a  condition  in  restraint  of  alien- 
ation when  repugnant  to  the  interest  created  is  void,  is 
laid  down  in  the  Civil  Code/  Where  a  restraint  against 
alienation  is  void  as  against  public  policy  the  grantee  may 
convey  an  absolute  title,  and  his  grantee  is  not  estopped 
by  any  act  or  declaration  made  by  him  to  allege  its  in- 
validity.® 

§  966.  Restraint  upon  partition  Ijy  tenants  in  com- 
mon.— Whether  a  restraint  upon  the  right  of  partition  by 

890;  Yard's  Appeal,  64  Pa.  St.  95;  Eeifsnyder  v.  Hunter,  19  Pa.  St.  41; 
Doebler's  Appeal,  64  Pa.  St.  9;  Oxley  v.  Lane,  35  N.  Y.  340;  Smith  v. 
Clark,  10  Md.  186 ;  Norris  v.  Hensley,  27  Cal.  439 ;  Lawrence  v.  Singleton, 
(Tenn.  Oct.  23,  1895),  17  S.  W.  Rep.  265;  McCleary  v.  Ellis,  54  Iowa,  311; 
37  Am.  Rep.  205 ;  Mandelbaum  v.  McDonnell,  29  Mich.  78 ;  18  Am.  Rep. 
61;  Hawley  v.  Northampton,  8  Mass.  3;  5  Am.  Dec.  66;  Gleason  v.  Fay- 
Brweather,  4  Gray,  348.     See  Sprague  v.  Edwards,  48  Cal.  239. 

^  Case  V.  Dewire,  60  Iowa,  442. 

'  Taylor  v.  Sutton,  15  Ga.  103 ;  60  Am.  Dec.  682. 

•  McCleary  v.  Ellis,  54  Iowa,  311 ;  37  Am.  Rep.  205.  A  deed  contained 
this  clause:  "The  said  J.  B.  Galloway  and  wife,  Alice  L.  Galloway,  re- 
taining for  themselves  and  their  heirs  and  assigns  the  right  to  repurchase 
said  land  when  sold,  the  said  Jefferson  Evans  conveying  a  title  for  said 
land  either  by  deed  or  mortgage  to  any  person  without  first  giving  J.  B. 
Galloway  and  wife  and  their  heirs  and  assigns  the  privilege  of  repurchas- 
ing the  same,  renders  this  deed  null  and  void,  otherwise  to  remain  in 
full  force."  This  provision  was  held  to  be  void  because  it  was  uncertain 
as  to  time  and  manner  of  performance,  was  repugnant  to  the  grant,  and 
was  a  restraint  on  the  power  of  alienation :  Hardy  v.  Galloway,  111  N.  C. 
519 ;  32  Am.  St.  Rep.  828.  See,  also,  Tillinghast  v.  Bradford,  5  R.  I.  205 ; 
Blackstone  Bank  v.  Davis,  21  Pick.  42 ;  32  Am.  Dec.  241 ;  Mebane  «. 
Mebane,  4  Ired.  Eq.  131 ;  44  Am.  Dec.  102. 

*  Civil  Code  Cal.  §711. 

'  Prey  v.  Stanley,  110  Cal.  423. 


1325  CONDITIONS,    LIMITATIONS,    ETC,  §  966 

tenants  in  common  is  a  restraint  upon  tlie  power  of  alien- 
ation or  not  depends,  in  a  great  measure,  upon  tlie 
character  of  the  property  and  the  purposes  for  which  it 
has  been  purchased.  As  an  abstract  proposition  the 
right  to  partition  is  an  inseparable  incident  to  ownership, 
and,  in  many  cases,  it  has  been  asserted  that  every  estate 
in  common  is  subject  to  partition.  This  was  said  in  a 
case  in  Massachusetts  where  there  was  no  agreement  that 
partition  should  not  be  had,  but  where  the  right  to  parti- 
tion was  resisted  on  the  ground  of  prescription.^  But 
where  the  use  of  the  property  as  a  whole  is  essential  for 
the  benefit  of  all,  and  it  has  been  acquired  for  a  definite 
purpose,  under  an  agreement  that  it  shall  not  be  divided 
by  partition,  the  agreement  is  not  subject  to  the  objection 
that  it  is  a  restraint  upon  alienation,  as  each  tenant  may 
convey  his  undivided  interest.  Hence,  if  land  purchased 
for  the  site  of  a  hotel  to  be  erected  by  an  association  is 
conveyed  to  the  members  forming  the  association,  upon 
condition  that  each  member  and  his  heirs  and  assigns 
shall  hold  the  same  in  common  without  partition  or  divi- 
sion, subject  to  the  articles  of  the  association,  such  a  con- 
dition is  not  repugnant  to  the  estate  granted,  or  void  upon 
grounds  of  public  policy.  Each  of  the  grantees  is,  as 
against  the  others,  estopped  to  demand  partition.^  But  a 
covenant  by  tenants  in  common  that  a  certain  part  of 
their  land  shall  be  occupied  in  common  as  a  yard,  by 
them  and  their  heirs  and  assigns  forever,  does  not  prevent 
partition  of  such  lot.  The  right  of  occupation  will  remain 
after  partition  as  it  existed  previously.^  And  so  if  a  deed 
conveying  an  undivided  interest  in  land  contains  a  stipu- 
lation that  the  parties,  their  heirs  and  assigns,  shall  never 
commence  proceedings  for  the  partition  of  a  certain  des- 
ignated part  of  the  land,  the  stipulation  is  void  because 

I  Mitchell  V.  Starbuck,  10  Mass.  11. 

»  Hunt  V.  Wright,  47  N.  H.  3% ;  93  Am.  Dec.  451 ;  Spaul.linR  v.  \N  ood- 
ward  53  N.  H.573;  16  Am.  Kep.  392;  Avery  v.  Payne,  12  Mich.  549. 
'  Fisher  V.  Dewerson,  3  Met.  544.    And  Bee  bavage  v.  MuHoa,  3  Cuah. 

500. 


§§  967, 968      CONDITIONS,  limitations,  etc.  1326 

it  is  an  unreasonable  restraint  of  the  use  and  enjoyment 
of  the  property/ 

§  907.      Condition    against    putting-    in     windows. — A 

condition  in  a  deed  of  a  house  that  there  shall  be  no 
windows  in  it,  would,  probably,  be  considered  a  restriction 
inconsistent  with  the  estate  granted,  and  hence,  void. 
But  a  condition  that  no  window  shall  be  placed  on  a  cer- 
tain side  would  be  valid.  A  clause  in  a  deed,  "provided, 
however,  this  conveyance  is  upon  the  condition  that  no 
windows  shall  be  placed  in  the  north  wall  of  the  house 
aforesaid,  or  of  any  house  to  be  erected  on  the  premises 
within  thirty  years  from  the  date  hereof,"  was  construed 
to  be  a  condition,  and  not  a  covenant,  giving  the  grantor 
a  right  to  re-enter  upon  a  breach.^ 

§  968.     Use  of  buildings  for  certain  purposes. — Where 

the  o.wner  of  a  block  of  land  divided  it  into  lots,  and  sold 
the  lots  from  time  to  time  to  different  persons,  and  the 
deeds  contained  mutual  covenants  against  the  erection  of 
buildings  for  certain  trades,  the  covenants  in  the  various 
deeds  are  for  the  mutual  benefit  and  protection  of  all  the 

1  Haeussler  v.  Missouri  Iron  Co.,  110  Mo.  188;  33  Am.  St.  Rep.  431. 
Said  Ttiomas,  J.,  for  the  court:  "  Restraints  and  fetters  upon  the  alien- 
ation and  enjoyment  of  property  are  opposed  to  the  common  law,  and 
especially  to  the  jurisprudence  of  to-day,  which,  in  the  United  States 
at  least,  has  almost  wholly  lost  the  spirit  and  genius  of  the  federal  sys- 
tem and  federal  tenures:  9  Am.  Law  Reg.,  N.  S.,  393,  457.  Primogen- 
iture and  ePtates  tail,  with  all  their  incidents,  find  but  little  favor  in 
the  laws  of  this  century.  The  right  of  partition  is  an  absolute  right 
■which  yields  to  no  consideration  of  hardship  or  inconvenience:  Freeman 
on  Cotenancy  and  Partition,  sec.  443.  Anything  that  militates  against 
this  ri^ht  is  repugnant  to  the  essential  characteristics  of  cotenancy: 
Mitchell  V.  Starbuck,  10  Mass.  11 ;  and  the  tendency  of  our  times  is  to 
greater  freedom  of  sale  and  transfer  of  property,  unfettered  by  conditions 
or  limitations  of  the  right  of  alienation." 

2  Gray  v.  Blanchard,  8  Pick.  283.  And  see,  Chapin  v.  School  District, 
35  N.  H.  445 ;  Wood  v.  County  of  Cheshire,  32  N.  H.  421 ;  Gillis  v.  Bailey, 
21  N.  H.  150;  s.  c.  17  N.  H.  18;  Parsons  v.  Miller,  15  Wend.  564;  Stuy- 
vesant  v.  Mayor  etc.  of  New  York,  11  Paige,  414;  Collins  v.  Marcy,  25 
Conn.  242;  Savage  v.  Mason,  3  Cush.  500;  Hooper  v.  Cummings,  45  Me. 
359. 


1327  CONDITIONS,    LIMITATIONS,    ETC.  §  968 

purchasers  of  lots  in  the  block.^  Persons  who  are  not  par- 
ties  to  a  deed  containing  a  covenant  providing  against 
certain  constructions  which  mav  be  offensive  to  neighbor- 
ing  inhabitants,  are,  if  they  have  suffered  from  a  breach 
of  it,  entitled  to  relief  in  equity.'  An  habendum  in  a  deed, 
"  to  have  and  to  hold  for  the  use  of  said  religious  Society 
of  Friends  so  long  as  it  may  be  needed  for  meeting  pur- 
poses, then  said  premises  to  fall  back  to  the  original  tract," 
is  not  broken  by  a  transfer  of  the  church  property  to 
neighboring  land,  where  use  was  still  to  be  made  of  the 
premises  for  meetings.^  Where  a  county  erects  a  court- 
house and  jail  on  land  conveyed  to  it  for  county  purposes, 
and  afterward  the  county  site  is  removed  to  another  place, 
the  title  of  the  county  is  not  divested  by  such  removal. 
The  removal  is  not  evidence  of  the  county's  intention  to 
abandon  the  property  or  to  use  it  for  purposes  not  for  the 
use  of  the  county/  In  a  deed  containing  the  conclition, 
"no  buildings  which  may  be  erected  on  said  lot  shall  be 
less  than  three  stories  in  height,  exclusive  of  the  basement 
and  attic,  nor  have  exterior  walls  of  any  other  material 
than  brick,  stone,  or  iron,  nor  be  used  or  occu])ied  for  any 
other  purpose,  or  in  any  other  way  than  as  a  dwelling- 
house,  for  the  term  of  twenty  years,"  from  a  day  named 
in  the  deed,  the  limitation  of  time  is  considered  as  apply- 
ing only  to  the  character  of  occupation,  and  not  to  the 
other  conditions.^ 

1  Barrow  v.  Richard,  8  Paige,  351;    35  Am.  Dec.  713. 

»  (ji.hert  r-.  Peteler,  3  N.  Y.  165.  See  Linzee  v.  Mixer,  101  Mnes.  512 ; 
Clark  V.  The  Inhabitants  of  the  Town  of  Bruokdeld,  8i  Mo.  ^iOll;  61  Am. 
Rep.  243.  If  a  person  has  agreed  not  to  build  flats  in  a  iieighboriiood, 
and  subsequently  purchases  land  there,  it  becomes  in  his  hands  re- 
stricted and  limited  in  its  uses  by  that  agreement,  and  comUmuch  subject 
to  the  restriction  in  the  hands  of  a  purciiaser  from  hiui  with  notice: 
Lewis  V.  Gollner,  129  N.  Y.  227;  26  Am.  St.  Hep.  516. 

^  Carter  v.  Branson,  79  Ind.  14. 

*  Poitevent  v.  Hancock  County  Supervisors,  58  Miss.  810. 

'  Keening  v.  Ayling,  126  Mass.  404.  See  as  to  the  cr>n8trurtion  of  a 
condition  tiuit  the  premises  shnuld  be  used  for  tlie  manufucturo  of  cars, 
Ellis  V.  Elkhart  etc.  Co.,  97  Ind.  247.  Tlie  question  of  the  exU»nt  to 
winch  an  agreement  that  the  grantee  will  uhc,  or  abstain  from  using,  the 
granted  premises  in  a  specified  manner,  was  exliausLively  considered  in 


§  9G8  a  CONDITIONS,  limitations,  etc.  1328 

§  9G8  a.      Euforcing"     personal     contract     of    grantor 
against  grantee  with  notice. — Although   an    agreement 

the  case  of  Hodge  v.  Sloan,  107  N.  Y.  244;  1  Am.  St.  Rep.  816.  In  that 
case,  the  owner  of  forty  acres  of  land  was  engaged  in  the  business  of  sell- 
ing sand  therefrom,  and  he  sold  a  half  acre  to  a  grantee  under  an  agree- 
ment that  the  latter  should  not  sell  any  sand  off  the  premises.  The 
original  contract  of  sale  contained  an  agreement  to  this  effect,  and  the 
deed  contained  this  covenant:  "Said  party  of  the  second  part  hereby 
agreeing  not  to  sell  any  sand  off  said  premises."  The  grantee  conveyed 
to  anotlier,  who,  notwithstanding  his  knowledge  of  the  agreement, 
opened  a  bed  on  the  premises  and  commenced  to  sell  sand  therefrom. 
The  original  grantor  brought  an  action  to  restrain  the  sale  of  sand,  and 
the  court,  in  considering  the  efffect  of  this  stipulation,  per  Mr.  Justice 
Danforth,  said:  "Parties  competent  to  contract  liave  contracted,  the  one 
to  sell  a  portion  of  his  land,  but  only  upon  such  conditions  as  will  pro- 
tect himself  in  the  prosecution  of  business  carried  on  upon  the  residue, 
the  other  agreeing  to  buy  for  a  consideration  affected  by  that  condition, 
and  enabled  to  do  so  onlj'  by  acceding  to  it,  and  he  therefore  binds  him- 
self by  contract  to  limit  the  use  of  land  purchased  in  a  particular  man- 
ner. There  seems  no  reason  why  he  and  his  grantee,  taking  title  with 
notice  of  the  restriction,  should  not  be  equally  bound.  The  contract 
was  good  between  the  original  parties,  and  it  should  in  equity,  at  least, 
bind  whoever  takes  title  with  notice  of  such  covenant.  By  reason  of  it 
tiie  vendor  received  less  for  his  land,  and  the  plain  and  expressed  inten- 
tion of  the  parties  would  be  defeated  if  the  covenant  could  not  be  en- 
forced as  well  against  a  purchaser  with  notice  as  against  the  original 
covenantor.  In  order  to  uphold  the  liability  of  the  successor  in  title,  it 
is  not  necessary  that  the  covenant  should  be  one  technically  attaching 
to  and  concerning  the  land,  and  so  running  with  the  title.  It  is  enough 
that  a  purchaser  has  notice  of  it;  the  question  in  equity  being,  as  is  said 
in  Tulk  V.  Moxhay,  11  Beav.  571,  2  Phill.  Oh.  774,  not  whether  the  cov- 
enant ran  with  the  land,  but  whether  a  party  shall  be  permitted  to  use 
the  land  inconsistently  with  the  contract  entered  into  by  his  vendor, 
and  with  notice  of  which  he  purchased.  This  principle  was  applied  in 
Tallmadge  v.  East  River  Bank,  26  N.  Y.  105,  where  the  equity  in  regard 
to  the  manner  of  improvement  and  occupation  of  certain  land  grew  out 
of  a  parol  contract  made  by  the  owner  with  the  purchaser,  and  was  held 
binding  upon  a  subsequent  purchaser  with  notice,  although  his  legal 
title  was  absolute  and  unrestricted.  In  Trustees  v.  Lynch,  70  N.  Y.  446, 
26  Am.  Rep.  615,  the  action  was  brought  to  restrain  the  carrymg  on  of 
business  on  certain  premises  in  the  city  of  New  York,  of  which  the  de- 
fendant was  the  owner,  upon  the  ground  that  the  premises  were  subject 
to  a  covenant  reserving  the  property  exclusively  for  dwelling-houses. 
The  court  below  held,  among  other  things,  that  the  covenant  did  not 
run  with  the  land,  and  that  the  restriction  against  carrying  on  any  busi- 
ness on  the  premises  was  liable  to  conflict  with  the  public  welfare,  and 
judgment  was  given  for  the  defendant.  Upon  appeal  it  was  reversed,  and 
the  covenant  held  to  be  binding  upon  a  subsequent  grantee  with  notice 


or 


1329  CONDITIONS,    LIMITATIONS,    ETC.  §  968  a 

made  by  the  owner  of  land  restricting  its  use,  may  not  be 
a  covenant  running  with  the  land,  or  a  legal  exception 

as  well  as  upon  the  original  covenantor.  So  the  restraint  mav  be  ajiainst 
the  use  of  the  premises  for  one  or  another  particular  purpose",  as  that  no 
building  thereon  'shall  be  used  for  the  sale  of  ale,  beer,  spirits,'  etc., 
as  an  inn,  publichouse,  or  beerhouse':  Carter  u.  Williams  L.'r.  QEq 
Cas.  678.  And  it  is  said  a  man  may  covenant  not  to  erect  a  mill  on  his  own 
lands:  Mitchell  v.  Reynolds,  1  P.  Wms.  181.  Many  other  instances  of  re- 
straint might  be  referred  to,  and  where  it  is  of  such  a  nature  as  concerns 
the  mode  of  occupying  or  dealing  with  the  property  purchased  in  the 
way  of  business  operations,  or  even  the  omission  of  all  business  or  cer- 
tain kinds  of  business,  or  the  erection  or  nonerection  of  buildings  upon 
the  property,  we  see  no  reason  to  doubt  the  validity  of  an  agreement 
fair  and  valid  in  other  respects,  which  secures  that  restraint.  Indeed, 
it  seems  well  settled  by  authority  that  a  personal  obligation  so  insisted 
upon  by  a  grantor  and  assumed  by  a  grantee,  which  is  a  restriction  as  to 
the  use  of  the  land,  may  be  enforced  in  equity  against  the  grantee  and 
subsequent  purchasers  with  notice:  Parker  v.  Nightingale,  6  Allen,  841, 
344;  83  Am.  Dec.  632;  Burbank  v.  Pillsbury,  48  jS.  H.  475;  nor  is  it 
essential  that  the  assignees  of  the  covenantor  should  be  named  or  re- 
ferred to:  Morland  v.  Cook,  L.  R.  6  Eq.  Cas.  252.  In  Tulk  v.  Moxhay, 
1  Hall  &  T.  105,  it  was  said  that  the  jurisdiction  of  the  court  in  such 
cases  is  not  fettered  by  the  question  whether  the  covenant  does  or  does 
not  run  with  the  land.  In  that  case  the  purchaser  of  land,  whicli  was 
conveyed  to  him  in  fee  simple,  covenanted  with  the  vendor  that  the  land 
should  be  used  and  kept  in  ornamental  repair  as  a  pleasure  garden,  and 
it  was  held  that  the  vendor  was  entitled  to  an  injunction  against  the 
assignees  of  the  [lurchaser  to  restrain  them  from  building  ui)on  the  land. 
Upon  the  appeal,  the  chancellor,  Cottenham,  said:  'I  have  no  doul)t 
whatever  upon  the  subject;  in  short,  I  cannot  have  a  doubt  ui)on  it, 
without  imijeaching  what  I  have  considered  as  the  settled  rule  oi  tliia 
court  ever  since  I  have  known  it.  Where  the  owner  of  a  piece  of  hmd 
enters  into  contract  with  his  neighbor,  founded,  of  course,  upon  a  valu- 
able or  other  good  consideration,  that  he  will  either  use  or  abstain  from 
using  his  land  in  such  a  manner  as  the  other  party  by  the  contract  par- 
ticularly specifies,  it  appears  to  me  the  very  foundation  of  the  whole  of 
his  jurisdiction  to  maintain  that  this  court  has  authority  to  enforce  such 
a  contract.  It  has  never,  that  I  know  of,  been  disputed.'  Tlie  qiioHtion 
before  the  court  was  stated  to  be  whether  a  party  taking  property  witli 
a  stipulation  to  use  it  in  a  particular  manner  will  be  permitted  by  the 
court  to  use  it  in  away  diametrically  opposite  to  that  wliioh  the  party 
has  stipulated  for.  'Of  course' — he  says — 'of  conrse  the  party  jiurcluis- 
ing  the  property  which  is  under  such  restriction  gives  lesB  for  it  tlian  lie 
would  have  given  if  he  had  bought  it  unencumbered.  Can  there,  then,  Im 
anything  much  more  inequitable  or  contrary  to  good  conecienco  than 
that  a  party  who  takes  property  at  a  less  price  because  it  is  subject  to  a 
resiriction  should  receive  the  full  value  from  a  third  party,  and  that 
Buch  third  party  should  then  hold  it  unfettered  by  tlie  resiriction  under 
LtEEDS,  Vol.  II.—  84 


§  968  a  CONDITIONS,  limitations,  etc.  1330 

or  reservation,  still,  it  may  be  enforced  in  equity  by  in- 
junction against  a  grantee  who  did  not  purchase  inno- 
cently and  in  good  faith.  Thus,  a  builder  of  flats  and 
tenement  houses  contracted  for  the  purchase  of  a  lot  with 
the  object  of  building  thereon  a  tenement  house.  The 
street  was  occupied  by  private  residences,  and  their  own- 
ers deeming  the  contemplated  structure  would  be  an 
injury  to  them,  and  failing  to  induce  the  builder  not  to 
erect  such  a  building,  purchased  and  took  an  assignment 
of  the  contract  at  a  considerable  advance  over  the  price 
originally  agreed.  They  did  this  for  the  sole  and  de- 
clared purpose  of  preventing  the  erection  of  flats  in  the 
neighborhood,  and  they  purchased  the  contract  upon  the 
oral  agreement  of  the  builder,  that  he  would  not  construct 
any  flats  in  that  immediate  neighborhood.  The  builder, 
however,  soon  bought  other  premises  in  the  neighborhood 
and  commenced  the  erection  of  a  flat,  but  when  suit  was 
threatened  he  conveyed  the  property  to  his  wife  in  ex- 
change for  other  property  worth  considerably  less,  and  as 
her  agent  and  architect  continued  the  work.     The  wife 

which  it  was  granted?  That  would  be  most  inequitable,  most  unjust, 
and  most  unconscientious:  and,  as  far  as  I  am  informed,  this  court  m  ver 
wou'd  sanction  any  such  course  of  proceeding.'  And  in  language  very- 
applicable  to  the  case  before  us  he  adds:  'Without  adverting  to  any 
question  about  a  covenant  running  with  land  or  not,  I  consider  that  this 
piece  of  land  is  purchased  subject  to  an  equity  created  by  a  party  com- 
petent to  create  it;  that  the  present  defendant  took  it  with  distinct 
knowledge  of  such  equity  existing;  and  that  such  equity  ought  to  be 
enforced  against  him,  as  it  would  have  been  against  the  party  who  orig- 
inally took  the  land  from  Mr.  Tulk.'  This  case  is  cited  and  followed  as 
to  restrictive  covenants  in  many  cases :  Brown  v.  Great  East,  Ry.  Co., 
L.  R.  2  Q.  B.  D.  406 ;  London  etc.  Ry.  Co.  v.  Gomm,  L.  R.  20  Ch.  Div. 
562,  576,  Each  case  will  depend  upon  its  own  circumstances,  and  the 
jurisdiction  of  a  court  of  equity  may  be  exercised  for  their  enforcement 
or  refused,  according  to  its  discretion :  Trustees  v.  Thacher,  87  N.  Y.  311 ; 
41  Am,  Rep,  365 ;  but  where  the  agreement  is  a  just  and  honest  one,  its 
judgment  should  not  be  in  favor  of  the  wrongdoer.  Such  seems  to  us 
the  character  of  the  covenant  in  question;  it  is  restrictive,  not  collateral 
to  the  land  but  relates  to  its  use,  and  upon  the  facts  found  the  plaintiff 
is  entitled  to  the  equitable  relief  demanded."  The  court  in  the  case 
cited  (Hodge  v.  Sloan)  distinguish  the  case  from  Brewer  v.  Marshall, 
19  N,  J,  Eq.  537 ;  97  Am,  Dec.  679,  where  the  court  held  that  the  facta 
did  not  justify  the  interference  of  a  court  of  equity. 


1331  CONDITIONS,    LIMITATIONS,    ETC.  §  9G9 

knew  all  the  facts,  and  took  the  title  in  her  name  for  the 
i:)urpose  of  assisting  her  husband  to  avoid  his  contract. 
The  court  held  that  the  builder  might  be  enjoined  from 
continuing  the  proposed  construction,  or  using  any 
structure  on  the  land  as  a  flat.^  Where  parties  purchase 
land  with  notice  of  a  covenant  relating  to  it,  but  not  run- 
ning with  the  land,  they  will  not  be  permitted  in  equity 
to  perform  any  act  contrary  to  the  true  meaning  of  that 
covenant.^  An  owner  possesses  an  easement  where  it 
is  agreed  by  owners  fronting  upon  a  square  of  land  in  a 
city,  that  certain  places  laid  out  upon  a  map  shall  remain 
open  as  appurtenant  to  several  lots,  and  if  the  city  in  the 
exercise  of  the  right  of  eminent  domain  takes  such  a  lot 
it  must  compensate  the  owner  of  another  lot  entitled  to 
such  easement  for  its  loss.^ 

§  969.     Who  may  take  advantage  of  breach. — No  one 

can  take  advantage  of  a  breach  of  a  condition  subsequent 
but  the  grantor  or  his  heirs.  If  they  do  not  take  stei>s  to 
enforce  a  forfeiture  of  the  estate  on  the  ground  of  a 
breach  of  the  condition,  the  title  remains  unimpaired 
in  the  grantee.  This  rule  also  prevails  where  a  con- 
dition is  inserted  in  a  patent  or  grant  made  by  tlie 
government.^     "In    what    manner    the    reserved    right 

1  Lewis  V.  Gollner,  129  N.  Y.  228;  26  Am.  St.  Rep.  516. 

^  Tulk  V.  Moxhay,  2  Phill.  Ch.  774;  Patching  v.  Dubljin?,  Kay,  1. 

*  Laddv.  City  of  Boston,  151  Mass.  585;  21  Am.  St.  Rep.  481.  In 
the  latter  volume  there  is  an  extended  note  upon  covenants  restricting 
the  use  of  land,  to  which  the  reader  is  referred  for  a  more  elabbrate  dis- 
cussion of  the  suV^ject. 

*  Schulenberg  v.  Harriman,  21  Wall.  44;  Smith  v.  Brannari.  13  Cal. 
107;  Hooper  v.  Cumminps,  45  Me.  359;  Towiie  v.  Bowers,  M  Mo.  4!>1; 
De  Peyster  v.  Michael,  6  N.  Y.506;  57  Am.  Dec.  470;  Gray  v.  I51anchiir.l, 
8  Pick.  284;  Bangor  v.  Warren,  34  Me.  324;  56  Am.  Dec.  657;  Norris  v. 
Milner,  20  Ga.  563 ;  Merritt  v.  Harris,  102  IMass.  328.  See  Fonda  v.  SuK'e, 
46  Barb.  122;  Van  Rensselaer  r.  Bali,  19  N.  Y.  103;  Cross  v.  Carson,  8 
Blackf.  138;  44  Am.  Dec.  742;  Nicoll  v.  New  York  &  Erie  U.  R.  Co..  12 
N.  Y.  121;  Southard  v.  Central  R.  R.  Co.,  2  Dutch.  13;  Dewvy  v.  W.l- 
liams,  40  N.  H.  222;  77  Am.  Dec.  70S;  People  v.  Brown,  1  Cames.  416; 
United  States  v.  Repentigny ,  5  Wall.  267 ;  Cross  v.  Carson,  8  Hla.-kf.  138 ; 
44  Am.  Dec.  742;  Butchers  and  Drovers'  Stock  Yard  Co.  v.  Louisville  & 
N.  R.  Co.,  67  Fed.  Rep.  35;  State  v.  Lake  Shore  etc.  Ry.  Co.,  Com.  PI. 


§  969  CONDITIONS,    LIMITATIONS,    ETC.  1332 

of  the  grantor  for  breach  of  the  condition  must  be  asserted 
so  as  to  restore  the  estate  depends  upon  the  character  of 
the  grant.    If  it  be  a  private  grant,  that  right  must  be  as- 
serted by  entry  or  its  equivalent.     If  a  grant  be  a  public 
one,  it  must  be  asserted  by  judicial  proceedings  author- 
ized by  law,  the  equivalent  of  an  inquest  of  office  at  com- 
mon law,  finding  the  fact  of  forfeiture,  and  adjudging  the 
restoration  of  the  estate  on  that  ground,  or  there  must  be 
some  legislative  assertion  of  ownership  of  the  property 
for  breach  of  the  condition,  such  as  an  act  directing  the 
possession  and  appropriation  of  the  property,  or  that  it 
be  offered  for  sale  or  settlement."  ^     In  the  case  of  a  pri- 
vate grant,  the  heirs  of  the  grantor  are  entitled,  as  well  as 
the  grantor  himself,  to  take  advantage  of   a    breach  of 
the  condition.^     Land  was  conveyed  by  husband  and  wife 
to  a  person  on  condition  that  the   latter   should  main- 
tain the  grantors  during  their  lives,  and,  in  case  of  a  fail- 
ure to  comply  with  the  condition,  the  land  should  revert. 
Subsequently,  the   husband   secured  a  divorce  from   his 
wife,  and  the  grantee  declined  to  maintain  her  except  in 
her  former  husband's  house.     It  was  held  that,  while  the 
husband  only  could  enforce  a  forfeiture,  yet  the  wife  could 
enforce  her  claim  for  maintenance  as  a  lien  on  the  land, 
and  that  the  grantee  had  no  power  to  make  the  condition 
that  he  sought  to  impose.^    Where  there  has  been  a  breach, 
if  the  grantor  remains  in  possession,  and  has  not  waived 
the  forfeiture,  the  title  becomes  vested  in  him  again.*     If 
it  is  stated  in  a  deed  that  it  is  made  upon  condition  that 
the  grantee  will,  within  a  certain  time  from  the  date  of 

1  Ohio  N.  P.  292;  2  Ohio  Dec.  300;  Hayward  v.  Kinney,  84  Mich.  591; 
48  N.  W.  Rep.  170 ;  Oopeland  v.  Copeland,  89  Ind.  29 ;  Higbee  v.  Rodeman, 
129  Ind.  244;  28  N.  E.  Rep.  442;  Boone  v.  Clark,  129  111.  466;  21  N.  E. 
Rep.  850;  Neimeyer  ■?;.  Knight,  98  111.  222;  Hooper  v.  Cummings,  45  Me. 
359;  Piper  ?;.  Union  Pac.  Ry.  Co.,  14  Kan.  568;  McElroy  v.  Morley,  40 
Kan.  76 ;  Owsley  v.  Owsley,  78  Ky.  257. 

1  Schulenberg  v.  Harriman,  21  Wall.  44,  63,  per  Mr.  Justice  Field. 

^  Jackson  V.  Topping,  1  Wend.  388;  19  Am.  Dec.  515;  Bowen  v.  Bowen, 
18  Conn.  535. 

»  Copeland  v.  Oopeland,  89  Ind.  29. 

*  Adams  v.  Ore  Knob  Copper  Co.,  4  Hughes  C.  C.  589. 


1333  CONDITIONS,    LIMITATIONS,    ETC.  §  970 

the  conveyauce,  erect  a  factory  upon  the  premises,  the 
condition  is  annexed  to  the  estate,  and  is  not  merely  the 
personal  covenant  of  the  grantor/  Where  a  deed  con- 
tains a  condition  for  the  support  of  the  grantor  during 
his  life,  and  does  not  stipulate  that  the  support  shall  he 
furnished  by  the  grantee  personally,  the  condition  may 
be  performed  by  some  other  person.^  When  the  grantor 
is  entitled  to  a  reversion  of  the  estate  for  condition 
broken,  his  right  is  not  affected  by  the  fact  that  the 
grantee  has  made  outlays.  The  right  of  entry  is  a  legal 
right.^ 

§  970.      Conditions    subsequent    strictly    construed. — 

Conditions  subsequent,  having  the  effect  in  case  of  a 
breach  to  defeat  estates  already  vested,  are  not  favored  in 
law,  and  hence  always  receive  a  strict  construction/  "A 
deed  will  not  be  construed  to  create  an  estate  on  condi- 
tion, unless  language  is  used  which  according  to  the  rules 
of  law,  ex  propria  vigore,  imports  a  condition,  or  the  in- 
tent of  the  grantor  to  make  a  conditional  estate  is  other- 
wise clearly  and  unequivocally  indicated."     "Conditions 

*  Latigley  v.  Chapin,  13i  Mass.  82.  In  the  absence  of  objection  on 
the  part  of  the  grantor,  a  third  party  cannot  excuse  a  failure  of  duty 
by  placing  it  on  the  ground  of  a  possible  violation  of  the  condition  of  tlie 
grant:  Butchers  and  Drovers'  Stockyard  Co.  v.  Louisville  &  N.  li.  Co., 
67  Fed.  Rep.  35. 

*  Joslyn  V.  Parlin,  54  Vt.  G70. 

'  Rowell  v.  Jewett,  71  Me.  408. 

*  Hunt  V.  Beeson,  18  Ind.  380.;  Page  v.  Palmer,  43  N.  H.  385;  IToytt;. 
KimPjall,  49  N.  H.  322;  Wilson  v.  Gait,  18  111.  431 ;  Laberee  v.  Carleton, 
53  Me.  213;  Thompson  v.  Thompson,  9  Ind.  323;  68  Am.  Dec.  638;  Lud- 
low V.  New  York  etc.  R.  R.  Co.,  12  Barb.  440;  Taylor  v.  Sutton,  15 (Ja. 
103;  63  Am.  Dec.  682;  Weir  v.  Simmons,  65  Wis.  637;  Mfrrilicld  v. 
Cobleigh,  4  Cush.  178;  Southard  v.  Central  R.  R.,  26  N.  J.  L.  13.  And 
eee  Board  etc.  v.  Trustees  etc.,  §3  III.  204;  McKelway  v.  Seymour,  29 
N.  J.  L.  322;  Bradstreet  v.  Clark,  21  Pick.  389;  Voris  v.  RoiihIiuw,  40 
111.  432;  Gladberry  v.  Sheppard,  27  Miss.  203;  Martin  f.  Ballon,  13 
Barb.  119;  McWiiliams  v.  Nisly,  2  Serg.  &  R.  513;  7  Am.  Dec.  654; 
Crane  v.  Hyde  Park,  135  Mass.  147;  Kilpatrick  v.  Mayor  of  Baltiinuro, 

81  Md.  179;  48  Am.  St.  Rep.  509;  Eim-rson  v.  Simpson,   43  N.  il.  475; 

82  Am.  Dec.  168;  Peden  v.  Chicago  etc.  Hy.  Co.,  73  Iowa,  32,S;  5  Am.  St. 
Rep.  680;  Rawson  v.  School  District,  7  Allen,  125;  83  Am.  Dec.  670; 
Cullen  V.  Sprigg,  83  Cal.  56, 


§  970  CONDITIONS,    LIMITATIONS,    ETC.  1334 

are  not  to  be  raised  readily  by  inference  or  argument."^ 
Where  a  deed  is  made  upon  condition  that  the  grantee 
shall  forever  keep  up  and  maintain  a  fence  on  the  line 
between  the  land  conveyed  and  the  land  of  the  grantor,  a 
neglect  to  keep  up  the  fence  after  the  death  of  the  grantee 
will  not  forfeit  the  land.^  Or,  in  other  words,  to  bind  the 
heirs  or  assigns  to  the  performance  of  a  condition  subse- 
quent, the  condition  must  expressly  mention  them,' 
Courts  are  inclined  to  construe  clauses  in  a  deed  as  cove- 
nants rather  than  as  conditions,  when  the  language  em- 
ployed is  capable  of  being  construed  as  a  covenant.*  Where 
the  clause  is  a  covenant,  the  legal  responsibility  for  its 
violation  is  a  liability  to  respond  in  damages,  while  a 
breach  of  the  condition  forfeits  the  estate." 

*  Kawson  v.  Inhabitants  of  School  District  etc.,  7  Allen,  125,  127;  83 
Am.  Dec.  670. 

2  Emerson  v.  Simpson,  48  N.  H.  475;  82  Am.  Dec.  168, 
2  Page  V.  Palmer,  48  N.  H.  385. 

*  Hoyt  V.  Kimball,  49  N.  H.  322;  Thornton  v.  Trammell,  39  Ga.  202; 
Packard  v.  Ames,  16  Gray,  327;  Scovill  v.  McMahon,  62  Conn.  378;  36 
Am.  St.  Rep.  350. 

*  Woodruff  V.  Water  Power  Co.,  10  N.  J.  Eq.  (2  Stockt.  Ch.)  489.  And 
see  Sharon  Iron  Co.  v.  Erie,  41  Pa.  St.  341;  Houston  v.  Spruance,  4 
Har.  (Del.)  117;  McOullough  v.  Cox,  6  Barb.  386;  Underbill  v.  Saratoga 
R.  R.,  20  Barb.  455.  When  the  language  used  in  a  deed,  which  it  ia 
claimed  creates  a  condition  subsequent,  is  capable  of  any  other  reason- 
able construction  that  will  uphold  the  estate  conveyed  by  the  deed, 
courts  are  inclined  to  give  the  language  such  a  construction.  For  various 
cases  in  which,  under  the  circumstances  existing  in  each  particular  case, 
the  rule  has  been  applied  or  recognized  that  conditions  subsequent  are 
strictly  construed,  and  are  not  favored,  see  Raley  v.  Umatilla  Co.,  15 
Or.  172;  3  Am.  St.  Rep.  142;  13  Pac.  Rep.  190;  Portland  v.  Terwilliger, 
16  Or.  465;  19  Pac.  Rep.  90;  Coffin  v.  Portland,  16  Or.  77;  17  Pac.  Rep. 
580;  Blanchard  v.  Detroit  etc.  R.  Co.,  31  Mich.  43;  18  Am.  Rep.  142; 
Hammond  v.  Port  Royal  etc.  Ry.  Co.,  15  S.  C.  10 ;  Hooper  v.  Cummings, 
45  Me.  359;  Laberee  v.  Carleton,  53  Me.  211;  Bray  t;.  Hussey,  85  Me. 
329;  22Atl.  Rep.  220;  CuUen  v.  Sprigg,  83  Cal.  56;  Jeffery  t;.  Graham, 
61  Tex.  481;  Jackson  v.  Silvernail,  15  Johns.  278;  Craig  v.  Wells,  11 
N.  Y.  315;  Woodworth  v.  Payne,  74  N.  Y.  196;  30  Am.  Rep.  298;  Baker 
V.  Mott,  78  Hun,  141;  Duryee  v.  New  York,  96  N.  Y.  477;  Graves  v.  De- 
terling,  120  N.  Y.  447;  Lyon  v.  Hersey,  103  N.  Y.  264;  Post  v.  Weil,  115 
N.  Y.  361;  12  Am.  St.  Rep.  809;  Elyton  Land  Co.  v.  South  &  N.  Ala. 
R.  Co.,  100  Ala.  396;  14  So.  Rep.  207;  Woodruff  v.  Water  Power  Co.,  10 
N.  J.  Eq.  489;  Southard  v.  Cent.  Ry.  Co.,  26  N.  J.  L.  13;  Woodruff  v. 


1335  CONDITIONS,    LIMITATIONS,    ETC.  §  971 

§  971.  Some  instances  of  construction. — A  deed  con- 
veying a  fee-simple  title  to  a  tract  of  land  contained  tlie 
clause:  "It  being  expressly  understood  by  the  parties  that 
the  said  tract  or  parcel  of  land  is  not  to  be  put  to  any 
other  use  than  that  of  a  depot  square,  and  that  no  busi- 
ness  or  improvements  are  to  be  put  on  the  said  tract,  but 
that  which  is  immediately  connected  with  the  Western 
and  Atlantic  Railroad."  This  clause  was  construed  to  be 
a  covenant  and  not  a  condition,  the  remedy  for  a  breach 
of  which  was  an  action  for  damages.^     A  distinction  is 

Woodruff ,  44  N.  J.  Eq.  349;  16Atl.  Rep.  4;  Lawe  v.  Hyde,  39  Wis.  345; 
Wier  V.  Simmons,  55  Wis.  637 ;  Mills  v.  Evansville,  58  Wis.  135 ;  15  N.  W. 
Rep.  138;  Greene  v.  O'Connor,  18  R.  I.  56;  25  Atl.  Rep.  692;  Chapin  v. 
School  District,  35  N.  H.  445;  Emerson  v.  Simpson,  43  N.  11.475;  82 
Am.  Dec.  168;  Paj^e  v.  Palmer,  48  N.  H.  385;  Hoyt  v.  Kimball,  49  N.  H. 
322;  Scovill  v.  McMahon,  62  Conn.  378;  36  Am.  St.  Rep.  350;  26  Atl. 
Rep.  479:  Morrill  v.  Wabash  Ry.  Co.,  96  Mo.  174;  9  S.  W.  Rep.  657; 
Stiihvell  V.  St.  Louis  &  H.  Ry.  Co.,  39  Mo.  App.  221 ;  Roanoke  Ins.  Co. 
V.  Kansas  City  &  S.  R.  Co.,  108  Mo.  50;  17  S.  W.  Rep.  1000;  Weinreich 
r.  Weinreich,  18  Mo.  App.  364;  Studdard  v.  Wells,  120  Mo.  25;  25  S.  W. 
Kep.  201;  Waterman  v.  Clark,  58  Vt.  601;  2  Atl.  Rep.  578;  Palmer 
V.  Ryan,  63  Vt.  227;  22  Atl.  Rep.  574;  Farnliam  v.  Thompson.  34 
Minn.  330;  57  Am.  Rep.  59:  Chute  v.  Washburn,  44  Minn.  312;  46 
N.  W.  Rep.  555;  Thompson  v.  Thom[)Son,  9  Ind.  323;  68  Am.  Dec. 
638;  Sumner  v.  Darrell,  128  Ind.  38;  27  N.  E.  Rep.  162;  Taylor 
V.  Sutton,  15  Ga.  103;  60  Am.  Dec.  682;  Peden  v.  Chicago  etc.  R. 
Co.,  73  Iowa,  328;  5  Am.  St.  Rep.  680;  Chapin  v.  Harris,  8  Allen,  594; 
Packard  v.  Ames,  16  Gray,  327;  Merrifield  v.  Coblcigh,  4  Cush.  178; 
Ayer  v.  Emery,  14  Allen,  67;  Pladley  v.  Hadley  Mfg.  Co.,  4  Gray,  140; 
Sohier  t;.  Trinity  Church,  lOt)  Mass.  1;  Stone  v.  Houghton,  139  Mass 
175;  Curtis  v.  Topeka,  43  Kan.  i:«;  23  Pac.  Rep.  98;  Riiggles  »-.  Chire, 
45  Kan.  662;  26  Pac.  Rep.  25;  Gallaher  v.  Herbert,  117  111.  160;  Hoono 
V.  Clark,  129  111.  466;  Stanley  v.  Colt,  5  Wail.  119;  Glenn  v.  Davis,  35 
Md.  208;  6  Am.  Rep.  389. 

1  Thornton  v.  Traramell,  39  Ga.  202.  Brown,  C.  J.,  disHcnted,  but 
Warner,  J.,  in  delivering  the  opinion  of  the  court,  said:  "The  convey- 
ance itselt'  is  an  unqualified  grant  of  tiie  land  to  the  grantee.  The  wordn 
of  the  grantor  in  conveying  the  land  to  thu  grantee  impose  no  cuwUdons 
unon  tiie  latter  which  would  be  compnlxory  on  him  to  do  any  act  wliat- 
ever.  Independent  of  the  unden^land'ui'j  or  covenant  of  llw,  pnrtifH,  as  cx- 
pres-ed  in  the  deed,  there  is  nothing  in  this  conveyance  to  diHliiigiiish  it 
from  any  other  deed  of  bargain  and  sale,  conveying  an  almcdnto  foe 
simple  estate  in  a  tract  of  land.  There  being  no  condition  rrprcfiird  in 
the  grant  of  the  land  to  the  grantee,  by  the  grantor,  of  course  there  can 
be  no  forfeiture  of  the  grantee's  estate  thcn-in  for  condition  hndrn.  I 
the  covenant  of  the  grantee  lias  been  broken,  the   plaintiffH  have  an 


§  971  CONDITIONS,    LIMITATIONS,    ETC.  1336 

also  to  be  noticed  between  a  condition  and  a  remainder 
By  a  condition  an  estate  is  defeated  before  its  natural 
termination.  A  remainder,  however,  takes  effect  only  on 
the  termination  of  a  preceding  estate.^  A  deed  of  land 
to  a  church  without  designating  any  use  or  condition 
transfers  a  fee  simple.  The  title  does  not  become  divested 
when  the  property  conveyed  is  no  longer  used  for  religious 
purposes.-  A  condition  subsequent  arises  from  the  use  of 
tlie  words  "  shall  indemnify  and  save  harmless."  '  Words 
used  in  a  deed  will  not  be  construed  into  a  condition  sub- 
sequent when  this  is  not  the  intention  of  the  parties,  nor 
when  they  can  receive  any  other  reasonable  construction.'* 
A  condition  subsequent  is  created  by  the  use  of  the  words 

adequate  remedy  by  an  action  thereon  to  recover  damages."  For  casea 
in  wliich  clauses  containing  conditions  have  been  construed,  see  Rainey 
V.  Chambers,  56  Tex.  17;  Owsley  v.  Owsley,  78  Ky.  257;  Taylor  v.  Bin- 
ford,  37  Ohio,  262;  Neimeyer  v.  Knight,  98  111.  222;  Barrie  v.  Smith,  47 
Mich.  130;  Poitevent  v.  Hancock  County  Supervisors,  58  Miss.  110; 
Risley  v.  McNiece,  71  Ind.  434;  Drew  v.  Baldwin,  48  Wis.  529;  Randall 
V.  Marble,  69  Me.  310;  31  Am.  Rep.  281;  King  v.  Malone,  31  Gratt.  514; 
SwoU  V.  Oliver,  61  Ga.  248. 

1  Sterns  v.  Godfrey,  16  Me.  158. 

*  Cook  V.  Leggett,  88  Ind.  211.  See  generally  Crane  v.  Hyde  Park, 
135  Mass.  147 ;  Erwin  v.  Hurd,  13  Abb.  N.  C.  91 ;  Methodist  Episcopal 
Church  V.  Old  Columbia  Public  Ground  Co.,  103  Pa.  St.  608;  Brown  v. 
Caldwell,  23  W.  Va.  187 ;  48  Am.  Rep.  376;  Mills  v.  Evansville  Seminary, 
58  Wis.  135;  Jefferson ville  etc.  R.  R.  Co.  v.  Barbour,  89  Ind.  375. 

*  Michigan  State  Bank  v.  Hastings,  1  Doug.  225;  41  Am.  Dec.  549. 
A  clause  providing  that  the  grantee  shall  erect  and  maintain  a  division 
fence  is  an  implied  covenant,  and  not  a  condition  sul^sequent  for  a 
breach  of  which  the  land  will  be  forfeited :  Palmer's  Executor  v.  Ryan, 
63  Vt.  227.  A  condition  subsequent  is  not  created  by  a  deed  conveying 
and  warranting  land  to  a  town  for  common  school  purposes :  Higbee  v. 
Rodeman,  129  Ind.  244.  But  it  may  impose  a  limitation  upon  the  man- 
ner in  which  the  property  is  to  be  leased :  Curtis  v.  Board  of  Education, 
43  Kan.  128. 

*  Wier  V.  Simmons,  55  Wis.  637.  A  condition  subsequent  is  not  cre- 
ated by  implication  by  a  statement  in  a  deed  that  it  is  made  for  a  special 
and  particular  purpose:  Kilpatrick  v.  Mayor  of  Baltimore,  81  Md.  179; 
48  Am.  St.  Rep.  509.  See  §  838  and  notes,  ante.  A  clause  in  a  deed 
that  a  railroad  company  should  erect  a  crossing  under  its  track  will,  in 
the  absence  of  a  clause  of  forfeiture,  or  other  indication  that  the  parties 
intended  to  attach  a  condition  to  the  grant,  be  construed  as  creating  an 
easement  and  not  a  condition  subsequent :  Still  well  v.  Railroad  Co.,  89 
Mo.  App.  221. 


1337  CONDITIONS,    LIMITATIONS,    ETC.  §§  972,  973 

"provided,  always,  and  this  deed  is  upon  the  express  con- 
dition," that  the  grantee  shall  maintain  a  specified  system 
of  drainage/ 

§  972.  Time  for  performance  of  condition. — Where 
no  limitation  is  prescrihed  within  which  a  condition 
must  be  performed,  it  is  said  that  the  grantee  has  his 
whole  lifetime  in  which  to  perform  it.^  But  where  a 
prompt  performance  of  the  condition  is  essential  to  give 
the  grantor  the  entire  benefit  which  it  was  expected  he 
would  obtain,  or  where  the  immediate  performance  of  the 
condition  was  the  consideration  inducing  the  grantor  to 
enter  into  the  agreement,  the  grantee  must  perform  the 
condition  within  a  reasonable  time,  and  has  not  his  whole 
lifetime  for  its  performance.^  Thus,  where  a  deed  is 
made  on  condition  that  the  grantee  shall  build  a  dwelling- 
house  on  the  land  conveyed,  and  allow  the  grantor  and  his 
wife  to  reside  there  during  their  joint  lives,  the  condition 
must  be  performed  within  a  reasonable  time.* 

§  973.  Clear  proof  of  forfeiture. — A  condition  can- 
not be  extended  beyond  its  terms,  and  a  party  who  insists 
upon  a  forfeiture  of  an  estate  for  a  breach  of  a  condition 
must  bring  himself  clearly  within  the  terms  of  the  con- 
dition.*    Where  a  deed   contained  a  condition   that  the 

1  Hammond  v.  Port  Royal  &  Augusta  Ry.  Co.,  15  S.  C.  10. 

*  See  Hamilton  v.  Elliott,  5  Serg.  &  R.  383. 

»  Hamilton  v.  Elliott,  5  Serg.  &  R.  375,  383.  See  Hayden  v.  Stongh- 
ton,  5  Pick.  528;  Ross  v.  Tremain,  2  Met.  495;  Reed  v.  Ihitoh,  55  N.  H. 
327;  Fisk  v.  Chandler,  30  Me.  79;  Allen  v.  Howe,  105  Mass.  211 ;  Di.key 
V.  McOullough,  2  W.  &  S.  88;  Stuyvesant  v.  New  York,  II  Paige,  414. 

*  Hamilton  v.  Elliott,  5  Serg.  &.  R.  375. 

*  Voris  t;.  Rensl.aw,  49  111.  425.  It  is  said :  "  When  a  grantor  of  lan.l 
seeks  to  re-enter  for  breach  of  a  condition  Bubsequent,  he  should  be  re- 
quired to  establish  something  more  than  a  technical  encroachment 
through  the  action  of  strangers  without  the  grantee's  permission.  It  is 
not  enough  to  show  in  this  way  that  the  letter  of  the  conduiun  .8  vio- 
lated,  but  it  must  appear  tl.at  its  true  spirit  and  purpose  have  be...,  wdl- 
fully  disregarded  by  the  grantee":  Rose  t;.  Ilawley,  141  N  Y.  .K.O.  3/8. 
Said  Mr.  Chief  Justice  Cole:  "It  is  elementary  law  thats.u-h  rond.t.onH 
are  most  strongly  construed  against  the  grantor,  nn<i  that  a  forfeiture 
will  not  be  eniorced  unless   clearly  established":   Mills  v.  Lvansvillo 


§  973  CONDITIONS,    LIMITATIONS,    ETC.  1338 

grantee  should  not  convey  the  property  except  by  lease 
for  a  term  of  years  prior  to  a  day  named  in  the  deed,  and 
the  grantee  subsequently,  and  within  the  period  limited 
in  the  deed,  executed  a  lease  of  the  land  conveyed  for 
ninety-nine  years,  and  also  at  the  same  time  made  and 
delivered  to  the  lessee  a  bond  for  an  absolute  deed,  con- 
veying the  fee  after  the  expiration  of  the  limitation,  and 
received  from  the  purchaser  the  purchase  price  agreed 
upon,  these  acts  of  the  grantee,  it  was  held,  were  not  pro- 
hibited by  the  condition,  and  consequently  no  forfeiture 
of  the  estate  resulted/ 

Seminary,  58  Wis.  135,  140;  15  N.  W.  Rep.  133.     That  a  forfeiture  must 
be  clearly  established,  see,  also,  Hadley  v.  Hadley  Mfg.  Co.,  4  Gray,  140; 
Merrifieid  v.  Cobleigh,  4  Gush.  178;  Bradstreet  v.  Clark,  21  Pick.  289; 
Grane  v.  Hyde  Park,  135  Mass.  147;  Taylor  v.  Sutton.  15  Ga.  103;  60  Am. 
Dec.  682 ;  Osgood  v.  Abbott,  58  Me.  73 ;  Hooper  v.  Gummings,  45  Me. 
359;  Laberee  v.  Garleton,  53  Me.  211;  Sharon  Iron  Go.  v.  Erie,  41  Pa.  St. 
341;  Lehigh  Goal  etc.  Co.  v.  Early,  162  Pa.  St.  338;  34  W.  N.  C.  501;  29 
Atl.  Rep.  736;  Hoyt  v.  Kimball,  49  N.  H.  322;  Newman  v.  Rutter,  8 
Watts,  51;  Ghapin  v.  School  District,  35  N.  H.  445;  Jenkins  i'.  Merritt, 
17  Fla.  304;  Hunt  v.  Beeson,18  Lid.  380;  Thompson  v.  Thompson,  9  Ind. 
323;  68  Am.  Dec.  638;  Wdson  v.  Gait,  18  111.  431;  Lynde  v.  Hough,  27 
Barb.  415;  Woodworth  v.  Payne,  74  N.  Y.  196;  30  Am.  Rep.  298;  Will- 
iams V.  Dakin,22  Wend.201;  Ludlow  v.  New  York  etc.  R.  R.Go.,12  Barb. 
440;  Craig  v.  Wells,  11  N.  Y.  315;    Barrie  v.  Smith,  47  Mich.  130;    10 
N.  W.  Rep.  168;  Waldron  v.  Toledo  etc.  Ry.  Co.,  55  Mich.  420;  21  N.  W. 
Rep.  870;  Glenn  v.  Davis,  35  Md.  208;  6  Am.  Rep.  389;  Southard  v. 
Cent.  R.  R.  Co.,  26  N.  J.  L.  13;  McKelway  v.  Seymour,  29  N.  J.  L.  321. 
^  Voris  V.  Renshaw,  49  III.  425.     Mr.  Justice  Walker  said,  in  deliver- 
ing the  opinion  of  the  court:  "When  we  apply,  then,  the  strictest  rules 
of  law  in  the  language  of  the  books,  neither  the  bond  nor  the  lease  was 
a  conveyance  of  the  property.     In  a  legal  sense,  a  bond  does  not  convey 
any  title.     It  is  but  an  obligation  to  convey  at  a  future  time.     It  is  in  no 
sense  a  conveyance,  and  we  have  seen  that  where  a  party  is  insisting 
upon  the  forfeiture  of  an  estate,  under  a  condition  of  his  own  creation, 
he  must  bring  himself  clearly  within  the  terms  of  the  condition.     We 
have  no  ritiht  to  extend  the  condition  beyond  its  terms.     We  cannot  say 
that  an  act  not  embraced  within  the  language  is  within  the  spirit  of  the 
condition,  and  will  be  substituted  for  the  act  prohibited  by  the  terms 
of  the  condition.     To  do  so  would  be  to  give  a  liberal  instead  of  the  strict- 
est legal  construction.     To  say  that  while  the  condition  only  imposed  a 
forfeiture  by  an  attempt  to  convey  the  property  within  the  limited  period, 
by  an  instrument  capable  of  conveying  it,  yet  it  was  forfeited  by  execu- 
ting an  instrument  that  does  not  convey,  and  all  know  does  not  have 
that  effect,  would  be  to  give  a  liberal  and  not  a  strict  construction." 


1330  CONDITION'S,    LIMITATIONS,    ETC.  §  074 

§  974:.  Distinction  between  conditions  and  liniitu- 
tions. — A  limitation  determines  an  estate  upon  the  hap- 
pening of  the  event  itself,  without  the  necessity  of  doing 
any  act  to  regain  the  estate.^  "The  distinction  hetween 
an  estate  upon  condition,  and  the  limitation  by  which  an 
estate  is  determined  upon  the  happening  of  some  event, 
is,  that  in  the  latter  case  the  estate  reverts  to  the  grantor, 
or  passes  to  the  person  to  whom  it  is  granted  by  limita- 
tion over,  upon  the  mere  happening  of  the  event  upon 
which  it  is  limited,  without  any  entry  or  other  act,  while 
in  the  former,  the  reservation  can  only  be  made  to  the 
grantor  or  his  heirs,  and  an  entry  upon  breach  of  the 
condition  is  requisite  to  revest  the  estate.  The  provision 
for  re-entry  is  therefore  the  distinctive  characteristic  of 
an  estate  upon  condition;  and  when  it  is  found  that  by  any 
form  of  expression  the  grantor  has  reserved  the  right,  upon 
the  happening  of  any  event,  to  re-enter,  and  thereby  re- 
vest in  himself  his  former  estate,  it  may  be  construed  as 
such."^  Where  a  condition  subsequent  is  followed  by  a  lim- 
itation over  in  case  of  a  breach  of  the  condition,  it  becomes 
a  conditional  limitation.^  No  one  but  a  grantor  or  his  heirs 
can  take  advantage  of  a  breach  of  a  condition.     But  a 

1  Guild  V.  Kichards,  16  Gray,  309 ;  Osgood  v.  Abbott,  58  Me,  73 ;  South- 
ard V.  Central  R.  R.,  26  N.  J.  L.  1.  And  see  Miller  v.  Levi,  44  N.  Y.  489; 
Henderson  v.  Hunter,  59  Pa.  St.  340;  People  of  Vermont  v.  Society,  2 
Paine,  545;  Wheeler  v.  Walker,  2  Conn.  196;  7  Am.  Dec.  264. 

»  Attorney  General  v.  Merrimack  Mfg.  Co.,  14  Gray,  586,  612,  per 
Hoar,  J.  In  the  case  from  which  this  quotation  is  taken,  a  deed  of  a 
church  lot,  with  the  church  and  the  parsonage  or  minister's  house 
standing  thereon,  was  made  "in  consideration  of  one  dollar,  an.l  for  the 
purpose  of  supporting  divine  worship,"  hahnxdam  "  so  long  as  they  simll 
use  or  permit  the  same  to  be  used,  and  appropriated  to  divme  worHhip, 
and  for  a  residence  of  the  minister  of  the  gosi-d.  and  no  longer,  these  being 
the  whole  object  and  intent  of  the  parties  in  this  .onveyance  " ;  and  tho 
deed  reserved  a  right  of  re-entry  to  the  grantors,  upon  failure  to  comply 
with  the  ' 'object  and  intentions  of  the  parties  hereto,  as  above  ex  prosscd. 
The  court  held  that  the  estate  created  was  not  a  conditional  hmitatmn, 
but  an  estate  upon  condition,  which  became  absolute  by  a  subHecpieiit 
release  from  the  grantors.  .    .•  •        i 

*  Stearns  v.  Godfrey,  16  Me.  158.  And  see,  also,  relating  to  this  Hub- 
ject  Fifty  Associates  v.  Howland,  11  Mel.  9'J;  Propnelora  etc.  v.  Grant, 
3  Gray,  142;  63  Am.  Dec.  725. 


§  974  CONDITIONS,    LIMITATIONS,    ETC.  1340 

stranger  may  take  advantage  of  a  limitation.^  Land  was 
conveyed  to  a  railroad  company,  to  be  occupied  by  them 
for  tiio  use  of  a  depot  for  passengers  and  freight,  and  other 
necessary  buildings  for  the  accommodation  of  the  com- 
pany, and  also  for  the  erection  of  "a  house  for  the  tern- 
porary  reception  (other  than  a  public  house),  for  the 
accommodation,  victualing,  and  lodging  of  passengers 
and  others,"  and  with  the  proviso  that  if  the  buildings 
should  be  used  for  other  purposes,  or  if  the  grantees 
should  use  any  other  building  within  one  mile  of  the 
premises  for  the  purposes  mentioned  in  the  deed,  or 
should  use  the  premises  for  an  inn  or  tavern,  the  grantees 
should  forfeit  their  estate.  It  was  held  that  a  transfer  of 
the  property  by  the  grantees  to  another  corporation  under 
legislative  sanction,  and  the  selling  of  refreshments,  and 
occasionally  lodging  persons  in  the  depot  buildings  by  a 
person  in  the  employ  of  the  company,  did  not  constitute 
a  breach  of  the  condition.^  If  a  piece  of  land  is  conveyed 
to  a  son  by  his  parents,  on  the  former's  agreement  that 
he  shall  not,  without  his  father's  consent,  make  any 
changes  in  the  property,  or  contract  any  debt  that  might 
involve  it,  and  that  after  his  father's  death  he  will  divide 
it  with  the  rest  of  the  property  among  the  father's  other 
children,  and  the  son,  without  consideration,  causes  the 
land  to  be  conveyed  to  his  wife,  who  has  "  knowledge  of 
the  agreement,"  the  transaction  is  in  fact  a  deed  upon 
condition  subsequent,  and  the  son's  estate,  on  account  of 
the  breach  of  the  condition,  becomes  forfeited.^  So, 
where  a  conveyance  is  made  by  parents  to  a  son  on  the 
condition  that  he  should  support  them,  it  may,  upon 
proof  of  the  breach  of  the  condition,  be  rescinded  by  a 
court  of  equity.* 


^  People  of  Vermont  v.  Society  etc.,  2  Paine,  545;  Southard  v.  Central 
E.  E.,  26  N.  J.  L.  1.     And  see  Owen  v.  Field,  102  Mass.  90. 

*  Southard  v.  Central  R.  R.  Co.,  26  N.  J.  L.  (2  Dutch.)  1. 
»  Wilson  V.  Wilson,  86  Ind.  472. 

*  Blake  v.  Blake,  56  Wis.  392;   De  Long  v.  De  Long,  56  Wis.  514. 


1341  CONDITIONS,   LIMITATIONS,   ETC.         §§  975, 075  a 

§  975.  Appraisement  of  improvements. — The  fact 
that  the  grautor  is  compelled  to  pay  for  the  improve- 
ments erected  upon,  the  laud,  does  not  affect  the  question 
of  whether  a  clause  in  a  deed  is  to  be  considered  a  con- 
dition or  a  conditional  limitation.  "No  matter  how 
many  events  the  forfeiture  depends  upon,  nor  how  many 
individuals  must  act  in  producing  them,  when  all  these 
events  concur  and  coexist,  the  forfeiture  is  effected  as 
completely  as  if  it  depended  upon  the  occurrence  of  a 
single  event,  and  the  action  or  omission  of  a  single  indi- 
vidual." ^  A  deed  conveying  a  piece  of  land  as  a  site  for 
a  schoolhouse  contained  the  provision:  "The  conditions 
of  this  deed  are  such  that  whenever  the  within-named 
premises  shall  be  converted  to  any  other  use  than  those 
named  within,  and  the  within  grantees  shall  knowingly 
persist  in  the  use  thereof  for  any  purpose  whatever,  ex- 
cept such  as  are  described  in  said  within  deed,  the  said 
grantees  forfeit  the  right,  herein  conveyed  to  the  within- 
described  premises,"  upon  the  grantor  paying  to  them 
the  appraised  value  of  such  buildings  as  may  be  erected 
on  the  land.  The  court  held  that  this  provision  was  not 
a  limitation,  but  a  condition  subsequent,  and  that  the 
grantee's  estate  would  remain  unafifected  until  an  entry 
by  the  grantor  or  his  heirs,  after  a  breach  of  the  con- 
dition, and  that  the  provision  for  the  payment  of  the  ap- 
praised value  of  the.  buildings  did  not  dispense  with  the 
necessity  of  entering  for  a  breach. 

§  976  a.     Where  the  estate  conveyed  Is  less  than  the 

fee.— Where  an  estate  in  fee  is  not  conveyed,  the  rule  that 
a  limitation  on  the  use  of  the  property  inconsistent  with 
the  title  conveyed  is  void,  does  not  apply."  Tiie  grantor 
cannot  rescind  a  deed,  in  consideration  of  support  for  liis 
life,  by  executing  a  subsequent  conveyance  without  the 
consent  of  the  grantee,  for  the  reason  that  the  supi)ort  has 

1  Warner  v.  Bennett,  31  Conn.  408,  476. 
>  Warner  v.  Bennett,  31  Conn.  468. 
•  f  ellissier  v.  Corker.  103  Cal.  516. 


§  977  CONDITIONS,    LIMITATIONS,    ETC.  1342 

been  withheld.  He  must  resort  to  his  action  either  for 
the  value  of  tho  support  withheld,  or  to  rescind  on  equi- 
table grounds.^ 

§  976.  Parol  condition. — Aside  from  the  question  of 
a  reformation  of  a  deed  in  cases  where  clauses  have  been 
omitted  by  mistake,  it  is  certain  that  in  an  action  to  re- 
cover property  conveyed  by  deed  on  the  ground  that  a 
condition  on  which  it  was  made  has  not  been  performed, 
the  deed  must  speak  for  itself,  and  a  condition  cannot  be 
ingrafted  upon  a  deed  absolute  in  form  by  parol  evi- 
dence.^ The  ingrafting  of  a  contemporaneous  condition 
on  a  deed  will,  in  a  proper  action,  be  allowed  only  on  clear 
evidence  of  fraud,  accident,  or  mistake.' 

§  977.  Eflfect  of  restriction. — The  property  conveyed 
may  be  restricted  to  certain  uses.  A  deed  conveyed  land 
by  metes  and  bounds,  and  at  the  close  of  the  description 
contained  a  clause  "conditioned"  that  no  building  or 
erection  is  ever  to  be  made  on  the  land  conveyed,  except 
a  dwelling-house  and  outbuildings  for  the  same,  or  such 
other  buildings  as  would  not  affect  the  privileges  of  the 
grantor  to  a  greater  degree  than  would  the  erection  of 
such  dwelling-house  and  outbuildings,  and  conditioned 
also  that  no  building  more  than  a  certain  distance  beyond 
the  line  of  the  grantor's  house  should  ever  be  erected. 
The  clause  containing  these  restrictions  was  held  to  con- 
stitute neither  a  condition  precedent  or  subsequent,  nor 
a  covenant  that  the  grantee  would  abide  by  its  terms,  but 

1  McCardle  v.  Kennedy,  92  Ga.  198 ;  44  Am.  St.  Rep.  85. 

2  Mart^hal  County  High  School  Oo.  v.  Iowa  Evangelical  Synod,  28  Iowa, 
360;  Galveston,  Harrisburg  etc.  Ry.  Co.  w.  Pfeuffer,  56  Tex.  66;  Thomp- 
son V.  Thompson,  9  Ind.  323;  68  Am.  Dec.  638;  Scantlin  v.  Garvin,  46 
Ind.  262 ;  Moser  v.  Miller,  7  Watts.  156 ;  Schwalbach  v.  Chicago  M.  & 
St.  P.  Ry.  Co.,  73  Wis.  137;  40  N.  W.  Rep.  579;  Gadberry  v.  Sheppard, 
27  Miss.  203. 

*  East  Line  &  Red  River  R.  R.  Co.  v.  Garrett,  52  Tex.  133 ;  Marshall 
County  High  School  v.  Iowa  Evangelical  Synod,  28  Iowa,  360;  Ham- 
mond V.  Port  Royal  etc.  Ry.  Co.,  15  S.  C.  10;  Rogers  v.  Sebastian  Co.,  21 
Ark.  440;  Long  v.  McConnell,  158  Pa.  St.  573;  28  Atl.  Rep.  233;  Chap- 
man V.  Gordon,  29  Ga.  250. 


3343  CONDITIONS,    LIMITATIONS,    ETC.  §  97S 

that  it  was  a  part  of  the  description  of  the  estate  conveyed, 
and  showed  what  rights  passed  to  the  grantee,  and  what 
were  retained  by  the  grantor,  and  that  subsequent  pur- 
chasers from  the  grantee  could  not  erect  the  prohibited 
buildings,' 

§  978.     Deed  in  consideration  of  certain  agreements. 

The  courts  will  not  construe  an  estate  to  be  upon  con- 
dition, if  the  language  of  the  deed  will  admit  of  any  other 
reasonable  interpretation.  Thus,  a  deed  made  in  consid- 
eration of  a  sum  of  money,  and  the  performance  of  certain 
agreements  contained  in  an  indenture  annexed  to  the  deed, 
providing  for  the  support  of  the  grantor  and  his  wife,  is  not 
a  deed  upon  condition  subsequent.^  Nor  does  a  deed  to  a 
town  of  land  which  has  been  used  as  a  burying-place,  "for 
a  burying-place  forever,"  in  consideration  of  love  and  af- 
fection, and  other  valuable  considerations,  convey  an  estate 
upon  a  condition  subsequent.^     But  where  a  parcel  of  land 

^  Fuller  V.  Arms,  45  Vt.  400.  When  a  party  recovers  judgment  for 
the  permanent  injuries  Bustained  by  him  by  the  breach  of  restrictive 
covenants,  a  release  from  such  covenants  should  be  decreed:  Amerman 
V.  Deane,  132  N.  Y.  355;  28  Am.  St.  Rep.  584. 

'  Ayer  v.  Emery,  14  Allen,  67. 

»  Rawson  v.  Inhabitants  of  School  District  etc.,  7  Allen,  125;  83  Am. 
Dec.  670.  And  see  Hunt  v.  Beeson,  18  Ind.  380.  In  the  formiT  case, 
Mr.  Chief  Justice  Bigelow,  in  deliveriug  the  opinion  of  the  court,  said: 
"We  believe  there  is  no  authoritative  sanction  for  the  doctrine  tliat  a 
deed  is  to  be  construed  as  a  grant  on  a  condition  subsequent.  Sdloiy  for 
the  reason  thatit  contains  a  clause  declaring  the  purpose  for  whicli  it  ia 
intended  the  granted  premises  shall  be  used,  where  such  purpose  will 
not  inure  specially  to  the  benefit  of  the  grantor  and  his  aysi^MB,  but  ia 
in  its  nature  general  and  public,  and  where  tliere  are  no  other  words  in- 
dicating an  intent  that  the  grant  is  to  be  void  if  the  declared  purpose  ia 
not  fulliiled.  If  it  be  asked  whetlier  the  hiw  will  give  any  forn;  to  tho 
words  in  a  deed  which  declare  that  the  grant  is  ma.U-  for  a  specilic  i-ur- 
pose,  or  to  accomplish  a  particuhir  object,  the  answer  is,  that  they  may, 
if  properly  expressed,  create  a  confidence  or  trust,  or  amount  to  a  cove- 
nantor agreement  on  the  part  of  the  grantee.  TIhib,  it  is  naid  in  the 
Duke  of  Norfolk's  case.  Dyer,  138  6,  that  the  words  ca  inlculion,  <lo  not 
make  a  condition  but  a  confi-ience  and  trust.  See,  also,  I'uriah  v.  Whit- 
ney, 3  Gray,  516,  and  Newell  v.  Hill,  2  Met.  180,  an.l  cases  cited.  Hut 
whether  this  be  so  or  not,  the  absence  of  any  right  or  remedy  in  favor  of 
the  grantor  under  such  a  grant  to  enforce  tl>e  ai.propriation  of  land  to 
the  specific  purpose  for  which  it  was  conveyed,  will  not  of  itaeif  make 


§  978  CONDITIONS,    LIMITATIONS,    ETC.  1344 

is  dedicated  by  the  original  proprietors  of  a  town  for  a  pub- 
lic square,  the  municipal  authorities  cannot  sell  the  land 
or  divert  it  to  purposes  inconsistent  with  those  for  which 
it  was  dedicated.  The  grantor  retains  such  an  interest  in 
the  land  as  will  enable  him  to  enjoin  the  diversion.^  If 
a  county  buys  land  for  the  purpose  of  erecting  on  it  a 
courthouse    and  other  buildings,  and  the  deed  contains  a 

that  a  condition  which  is  not  so  framed  as  to  warrant  in  law  that  inter- 
pretation. An  estate  cannot  be  made  defeasible  on  a  condition  subse- 
quent, by  construction  founded  on  an  argument  ah  inconvenienti  only,  or 
on  considerations  of  supposed  hardship  or  want  of  equity.  In  the  light 
of  these  principles  and  authorities,  we  cannot  interpret  the  words  in  the 
deed  of  the  demandant's  ancestor,  which  declare  that  the  premises  were 
conveyed  'for  a  burying-place  forever,'  to  be  words  of  strict  condition. 
Nor  can  we  gather  from  them  that  they  were  so  intended  by  the  grantor. 
The  grant  was  not  purely  voluntary.  It  was  only  partially  so.  It  was 
not  made  solely  in  consideration  of  the  love  and  affection  which  the 
grantor  bore  toward  the  grantees,  but  also  'for  divers  other  valuable 
considerations,  me  moving  hereunto.'  Previously  to  the  time  of  the 
grant,  the  premises  had  been  used  for  a  burial-place.  It  is  so  described 
in  the  deed.  Under  what  circumstances  this  had  been  done  does  not 
appear.  It  may  have  been  for  a  compensation.  We  cannot  now  knoWf 
therefore,  that  the  sole  cause  or  consideration  which  induced  the  grantor 
to  convey  the  estate  to  the  town  was,  that  it  should  be  used  for  the  spe- 
cific purpose  designated  in  the  deed.  There  can  be  no  doubt  of  the  intent 
of  the  grantor  that  the  estate  should  always  be  used  and  appropriated 
for  such  purpose.  This  intent  is  clearly  manifested ;  but  we  search  in 
vain  for  any  words  which  indicate  an  intention  that  if  the  grantees 
omitted  so  to  use  them,  and  actually  devoted  them  to  another  purpose, 
the  whole  estate  should  thereupon  be  forfeited,  and  revert  to  the  heirs 
of  the  grantor.  The  words  in  the  deed  are  quite  as  consistent  with  an 
intent  by  the  grantor  to  repose  a  trust  and  confidence  in  the  inhabitants 
of  the  town,  for  whom  he  declared  his  affection  and  love,  that  they 
would  always  fulfill  the  purpose  for  which  the  grant  was  made,  so  long 
as  it  was  reasonable  and  practicable  so  to  do,  as  they  are  with  an  intent 
to  impose  on  them  a  condition  which  should  compel  them,  on  pain  of  for- 
feiture, to  maintain  the  premises  as  a  burial-place  for  all  time,  however 
inconvenient  or  impracticable  it  might  become  to  make  such  an  a]ipro- 
priation  of  them.  Language  so  equivocal  cannot  be  construed  as  a  con- 
dition subsequent,  without  disregarding  that  cardinal  principle  of  real 
property  already  referred  to,  that  conditions  subsequent  which  defeat  an 
estate  are  not  to  be  favored  or  raised  by  inference  or  implication." 

1  Warren  v.  Mayor  of  Lyons  City,  22  Iowa,  35L  "Nothing  can  be 
clearer,"  said  Wright,  J.,  "  than  that  if  a  grant  is  made  for  a  specific, 
limited,  and  defined  purpose,  the  subject  of  the  grant  cannot  be  used  for 
another,  and  that  the  grantor  retains  still  such  an  interest  therein  as  en- 
titles him,  in  a  court  of  equity,  to  insist  upon  the  execution  of  the  tiust 


1345  CONDITIONS,    LIMITATIONS,    ETC.  §  979 

clause  stating  that  the  laud  is  sold  for  that  purpose,  this 
clause  does  not  operate  to  limit  or  restrain  the  power  of 
alienation  by  the  couuty  authorities,  where  the  condition 
that  it  should  be  so  used  was  not  imposed  in  the  deed.^ 
But  a  deed  with  the  condition  that  the  grantor  is  "  to  have 
a  good  living  "  out  of  the  land  conveyed  duriug  his  life, 
and  all  other  necessary  expenses,  and  the  residue  is  to  re- 
main in  the  hands  of  the  grantee,  "that  is  to  say,  if  the 
conditions  are  fully  complied  with,"  otherwise  the  deed  is 
to  become  "  null  and  void  and  of  no  effect,"  is  a  deed  on 
condition,  and  the  estate  of  tlie  grantee  in  case  of  de- 
fault is  subject  to  loss  by  a  re-entry."  If  the  consideration 
for  a  deed  be  one  dollar,  and  the  execution  of  an  agree- 
ment to  give  to  the  grantor,  during  his  life,  a  certain  por- 
tion of  the  crop  produced  on  the  land,  the  performance 
of  this  agreement  is  a  condition  subsequent.^  But  it  is 
held  that  a  condition  is  not  created  by  a  provision  in 
a  deed  that  the  land  shall  be  subject  to  the  maintenance 
of  the  grantor.  The  effect  of  such  an  agreement  is 
merely  to  place  a  charge  upon  the  land  which  may  be  en- 
forced in  equity.'*  A  municipal  corporation  acquiring 
title  to  land  on  condition,  is  subject  to  the  same  rules  as 
a  private  individual.  If  it  acquires  land  on  condition 
that  upon  it,  within  a  specified  time,  it  shall  erect  a  build- 
ing suitable  for  municipal  purposes,  it  must,  for  a  failure 
to  comply  with  the  condition,  allow  the  land  to  return  to 
the  grantor.^ 

§  071>.  Reservations  and  exceptions. — A  reservation 
is  of  some  new  thing  issuing  out  of  what  is  granted;  an 
exception  is  a  withdrawal  from  the  operation  of  the  grant 

as  originally  declared  and  accepted:  WillianiB  v.  First  PreHbytcrijiii  So- 
ciety, 1  Ohio  St.  478;  Barclay  v.  Howell's  Lessee,  6  Peters,  498;  Webb 
V.  Moler,  8  0hio,  548;  Brown  v.  Manning,  6  Ohio,  25)8;  27  Am.  L>ec.  265." 

*  Supervisors  Warren  Co.  v.  Patterson,  50  111.  111. 
^  Watters  v.  Bredin,  70  Pa.  St.  235. 

«  Leach  v.  Leach,  4  Ind.  628;  58  Am.  Dec.  642. 

*  Pownal  V.  Taylor,  10  Leigh,  172;  34  Am.  Dec.  726. 

*  Clarke  v.  Inhabitants  of  the  Town  of  Brookfieid,  81  Mo.  503;  51  Am. 
Rep.  24:5.     And  see  St.  Louis  v.  Wiggins'  Ferry  Co.,  15  Mo.  App.  227. 

Deeds,  Vol.  II.  — 86 


§  979  CONDITIONS,    LIMITATIONS,    ETC.  1346 

of  some  part  of  the  thing  itself.  Saj's  Chancellor  Kent: 
"A  reservation  is  a  clause  in  a  deed  whereby  the  grantor 
reserves  some  new  thing  to  himself  issuing  out  of  the 
thing  granted,  and  not  in  esse  before;  but  an  exception  is 
always  a  part  of  the  thing  granted,  or  out  of  the  general 
words  and  description  in  the  grant.  It  is  repugnant  to 
the  deed  and  void,  if  the  exception  be  as  large  as  the  grant 
itself.  So  it  is  if  the  excepted  part  was  specifically  granted, 
as  if  a  person  grants  two  acres,  excepting  one  of  them. 
The  exception  is  good  when  the  granting  part  of  the  deed 
is  in  general  terms,  as  in  the  grant  of  a  messuage  and 
houses,  excepting  the  barn  or  dovehouse;  or  in  the  grant 
of  a  piece  of  land,  excepting  the  trees  or  woods;  or  in  the 
grant  of  a  manor,  excepting  a  close,  ex  verbo  generali  ali- 
quid  excipitur.  If  the  exception  be  valid,  the  thing  ex- 
cepted remains  with  the  grantor,  with  the  like  force  and 
efifect  as  if  no  grant  had  been  made."^     Petroleum  is  in- 

^  4  Kent's  Com.  468,  and  cases  cited.  See,  also,  Whitaker  v.  Brown, 
46  Pa.  St.  197;  Craig  v.  Wells,  11  N.  Y.  315;  Cutler  v.  Tuffts.  3  Pick.  272; 
Moulton  V.  Trafton,  64  Me.  218;  Pynchon  v.  Stearns,  11  Met.  312;  45 
Am.  Dec.  210;  Marshall  v.  Trumbull,  28  Conn,  183;  73  Am.  Dec.  637; 
Ashcroft  V.  Eastern  R.  R.  Co.,  126  Mass.  196;  30  Am.  Rep.  672;  State  v, 
Wilson,  42  Me.  9;  Stackbridge  Iron  Co.  v.  Hudson  Iron  Co.,  107  Mass. 
290;  Ives  v.  Van  Auken,  34  Barb.  566;  Munn  v.  Worrall,  53  N.  Y.  44; 
13  Am.  Rep.  470;  Brewer  v.  Hardy,  22  Pick.  376;  33  Am.  Dec.  747;  Due 
V.  Lock,  4  Nev.  &  M.  807;  Winthrop  v.  Fairbanks,  41  Me.  311;  Bridger 
V.  Pierson,  1  Lans.  481;  Pettee  v.  Hawes,  13  Pick.  323;  Farnum  v.  Piatt, 
8  Pick.  339;  19  Am.  Dec.  330;  Leavitt  v.  Towle,  8  N.  H.  96;  Choate  v. 
Burnham,  7  Pick.  274;  Hornbeck  v.  Westbrook,  9  Johns.  73;  McDaniel 
r.  Johns,  45  Miss.  632;  Richardson  v.  Palmer,  38  N.  H.  212;  Rich  v.  Zeils- 
dorff,  22  Wis.  544 ;  99  Am.  Dec.  81 ;  Barnes  v.  Burt,  88  Conn.  541 ;  Burr  v. 
Dana,  22  Cal.  11;  Blanc  v.  Bowman,  22  Cal.  23;  Dyer  v.  Sanford,  9  Met. 
395 ;  43  Am.  Dec.  399 ;  Thompson  v.  Gregory,  4  Johns.  81 ;  4  Am.  Dec.  255 ; 
Jackson  v.  McKenny,  3  Wend.  233;  20  Am.  Dec.  690;  Klaer  v.  Ridgway, 
86  Pa.  St.  529;  Wiley  v.  Sidorus,  41  Iowa,  224;  Sloan  v.  Lawrence  Fur- 
niture Co.,  29  Ohio  St.  568;  Lafayette  &  Wildcat  Gravel  Road  Co.  v.  Van- 
clain,  92  Ind.  153.  In  Dyer  v.  Sanford,  9  Met.  395,  43  Am.  Dec.  399,  Mr. 
Chief  Justice  Shaw,  in  delivering  the  opinion  of  the  court,  on  page  4u4, 
Bays:  "As  a  proper  reservation  or  exception,  we  think  the  principle 
stated  is  correct — that  it  must  be  something  out  of  the  estate  granted. 
But  we  have  no  doubt  that  by  apt  words,  even  in  a  deed-poll,  a  grantor 
may  acquire  some  right  in  the  estate  of  the  grantee.  It  is  not,  however, 
strictly  by  way  of  reservation,  but  by  way  of  condition  or  implied  cove- 
nant, even  though  the  term  'reserving'  or  'reservation'  is  used.    If  a 


1347  CONDITIONS,    LIMITATIONS,    ETC.  §  979 

eluded  under  a  reservation  of  all  minerals.^  A  reserva- 
tion is  to  be  construed  most  strongly  againct  the  grantor.^ 
But  reservations  are  to  be  construed  as  possessing  the 

grant  is  made  to  A,  reserving  the  performance  of  a  duty,  to  wit,  the  pay- 
ment of  a  sum  of  money  to  a  third  person,  for  the  benefit  of  the  grantor, 
an  accrii)tance  of  the  grant  binds  A  to  the  payment  of  the  money :  Good- 
win V.  Gilbert,  9  Mass.  510.  So,  wliere  a  demise  is  made  to  A,  reserving 
a  rent  in  money  or  in  service,  it  is  not  strictly  a  reservation  out  of  the 
demised  premises;  but  the  acceptance  of  it  raises  an  implied  obligation 
to  p  y  the  money.  So  we  think  a  grant  may  be  so  made  as  to  create  a 
right  in  the  grantee's  land  in  favor  of  the  grantor.  For  instance,  sup- 
pose A  has  close  Js'o.  2,  lying  between  two  closes,  Nos.  1  and  3,  of  B;  and 
A  grants  to  B  the  right  to  lay  and  maintain  a  drain  from  close  No.  1  across 
his  close,  No.  2,  thence  to  be  continued  through  his  own  close.  No.  3,  to 
its  outlet ;  and  A,  in  his  grant  to  B,  should  reserve  the  right  to  enter  his 
drain,  for  the  benefit  of  his  intermediate  close,  with  the  right  and  privi- 
lege of  having  the  waste  water  therefrom  pass  off  freely  through  the 
grantee's  close,  No.  3,  forever.  In  effect,  this,  if  accepted,  would  secure 
to  the  grantor  a  right  in  the  grantee's  land;  but  we  think  it  would  inure 
by  way  of  implied  grant  or  covenant,  and  not  strictly  as  a  reservation. 
It  results  from  the  plain  terms  of  the  contract." 

In  Cutler t'.  Tuffts,  3  Pick.  277,  it  is  said:  "An  exception,"  says  Lord 
Coke,  1  Inst.  47  a,  "  is  ever  a  part  of  the  thing  granted,  and  of  a  thing  in 
esse,  as  an  acre  out  of  a  manor;  that  is,  out  of  a  general  a  part  may  Le 
excepted,  but  not  part  of  a  certainty,  as  out  of  twenty  acres,  one. 
Now,  in  the  case  before  us,  the  thing  granted  is  certain,  that  is  a  moiety 
ot  a  certain  tract  of  land;  an  exception,  therefore,  of  one-half  of  this 
moiety  would  be  like  a  grant  of  twenty  acres  excepting  one.  It  is  not  a 
reservation,  for  that  must  be  of  some  new  right  not  in  esse  before  the 
grant,  as  of  rent,  etc.,  or  perhaps  of  some  pre-existing  easement."  And 
f-.ee  Corning  v.  Troy  Iron  Co.,  40  N.  Y.  209;  Pettree  v.  Hawes,  ]3  Pick. 
32H;  Richardson  v.  Palmer,  38  N.  H.  212;  Hurd  v.  Curtis,  7  Met.  110; 
Whitaker  v.  Brown,  46  Pa.  St.  197;  Bridger  v.  Pierson,  45  N.  Y.  601; 
Emerson  v.  Mooney,  50  N.  H.  316;  Bowi-n  v.  Conner,  6  Cush.  132;  Fancy 
V.  Scott,  2  Man.  &  R.  335;  Dennis  v.  Wils(jn,  107  Mass.  591  ;  Qreenleaf  «. 
birth,  5  Peter.s,  302;  Barber  v.  Barber,  33  Conn.  335;  Sprague  v.  Snow, 
4  Pick.  54;  Crosby  v.  Montgomery,  38  Vt.  238. 

'  Dudham  v.  Kirkpatrick,  101  Pa.  St.  36;  47  Am.  Rep.  696. 

'  Klaer  v.  Ridgway,  86  Pa.  St.  529;  Wiley  v.  Sidorus,  41  Iowa,  224; 
Jackson  v.  Hudson,  3  Johns.  375;  3  Am.  Dec.  500;  Jackson  v.  Ciardner, 
B  Johns.  394.  Where  a  deed  grants  "all  the  rigiit,  title,  and  interest 
of  the  said  party  of  the  first  part,  tlie  same  l)eing  one-half  un.jivided 
interest,"  the  deed  transfers  all  the  title  of  the  grantor,  an<i  the  previous 
words  of  conveyance  are  not  limited  by  the  exi)r»'H8ion  "being  a  one- 
halt  undivided  interest":  Mcl.ennan  v.  McDonnell,  78  Cal.  273.  ReHcr- 
vations  are  construed  most  strongly  auaiuHt  the  grantor:  Grafton  »». 
Moir,  130  N.  Y.  465;  27  Am.  St.  Rep.  53.'!.  Where,  under  a  deed,  Iho 
grantee  is  lo  hold  "during   the  term  of  her  natural   life,  and   after  her 


§  980  CONDITIONS,    LIMITATIONS,    ETC.  1348 

force  which  it  is  supposed  the  deed  meant  that  they  should 
possess.'  A  reservation  of  all  minerals,  or  of  the  right  of 
mining,  must  always  respect  the  surface  rights  of  support. 
The  surface  is  not  to  be  destroyed  without  some  addi- 
tional authority.^  Where  land  is  conveyed  to  trustees  to 
be  used  as  a  graveyard,  the  grantor  reserving  '*  the  riglit 
and  privilege  to  and  for  the  said  grantor,  and  every  mem- 
ber of  his  family  or  their  offspring,  to  mark  off  within  the 
boundaries  of  the  above-described  lot  one  square  perch  of 
ground  in  any  locality  thereof  where  they  may  think 
proper,  for  their  own  and  sej^arate  use  forever  for  the 
burial  of  the  dead,"  the  privilege  reserved  is  personal 
to  the  grantor  and  his  family.  It  cannot  be  assigned  to 
a  stranger.^  A  reservation  must  be  made  to  the  grantor. 
But  it  is  considered  as  made  when  by  it  he  secures  valu- 
able rights,  though  others  may  be  also  benefited."* 

§  980.      Construing-  a  reservation   as  an  exception. — 

The  terms  "  exception"  and  "  reservation"  are  often  used 
indiscriminately,  and  sometimes  in  a  deed  what  purports 
to  be  a  reservation  has  the  force  of  an  exception.^  Mr. 
Justice  Woodward,  after  reviewing  some  authorities,  says: 
"Thus  it  appears,  upon  sufficient  authority,  that  words  of 
reservation  may  operate  by  way  of  exception,  and,  to  have 
any  effect,  must  do  so  when  the  subject  of  the  reserv;  tion 
is  not  something  newly  created,  as  a  rent  or  other  interest 

death  to  revert  to  me  and  my  heirs,"  the  fee  remains  in  the  grantor,  and 
if  he  should  die  before  the  grantor  his  interest  may  be  sold  subject  to 
the  hie  estate:  Clark  v.  Hillis,  134  Ind.  421 ;  34  N.  E.  Rep.  13.  Section 
979  was  cited  as  authority  in  City  of  Fort  Wayne  v.  Lake  Shore  and 
Michigan  Southern  Ry.  Co.,  132  Ind.  558,  32  Am.  St.  Rep.  277,  where 
it  was  held  that  where  land  is  conveyed  to  a  railroad  company  by  a  city, 
under  a  deed  reserving  the  right  to  cross  the  tracks  with  its  streets  when 
the  city  shall  have  made  an  addition  of  certain  land  thereto,  the  right 
cannot  be  enforced  until  it  has  made  the  addition. 

1  Hail  V.  Ionia,  38  Mich.  493. 

"  Erickson  v.  Michigan  Land  and  Iron  Co.,  50  Mich.  604. 

*  Pearson  v.  Hartman,  100  Pa.  St.  84.    And  see  Wadsworth  v.  Smith, 
11  Me.  278;  26  Am.  Dec.  525. 

'  Gay  V.  Walker,  36  Me.  54;  58  Am.  Dec.  734. 

*  State  V.  Wilson,  42  Me.  9;  Whitaker  v.  Brown,  46  Pa.  St.  197. 


1349  CONDITIONS,    LIMITATIONS,    ETC.  §  980  a 

I 

strictly  incorporeal,  but  is  a  thing  corporate  and  in  esse 
when  the  grant  is  made."  ^  For  instance,  an  owner  of 
land  across  which  a  way  had  been  laid  out  and  used  by 
the  public  for  several  years  conveyed  the  hind,  "  reserving 
to  the  public  the  use  of  the  way  across  the  same  from  the 
county  road  to  the  river."  This  clause  was  considered  as 
creating  an  exception,  and  as  applying  to  the  way  then  in 
existence.^  Where  a  grantor  conveys  land,  "saving  and 
reserving,  nevertheless,  for  his  own  use,  the  coal  con- 
tained in  the  said  piece  or  parcel  of  land,  together  with 
free  ingress  and  egress  by  wagon  road  to  haul  the  coal 
therefrom  as  wanted,"  the  clause  operates  as  an  exception, 
and  the  grantor  retains  the  entire  and  perpetual  property 
in  the  coal.'  A  clause  in  a  deed  conveying  one-half  of  a 
farm,  "  excepting,  however,  the  reserve  of  the  four  rows 
of  apple  trees  on  the  north  side  of  the  orchard,  with  a 
suitable  passway  to  and  from  the  same,  and  the  land  on 
which  they  stand,  also  so  much  of  the  second  growth  of 
ash  timber  as  I  shall  want  for  my  personal  use,"  creates 
an  exception.* 

§  980  a.  Title  founded  on  an  exception. — There  is  no 
material  distinction  between  a  title  founded  on  an  excep- 
tion out  of  a  grant  and  a  title  arising  from  a  direct  grant 
of  the  same  subject.^  A  parol  reservation  of  a  crop,  where 
land  is  conveyed  by  a  deed  of  warranty  containing  no 
reference  to  the  reservation,  is  void."  An  exception  is 
not  void  for  uncertainty,  because  the  boundaries  of  tlie 
land  excepted  must  be  shown  by  evidence.^  It  is  com- 
petent to  dissever  the  title  to  the  surface  of  land  and  the 
minerals  beneath  it,  so  that  the  mineral  may  become  a 

»  In  Whitaker  v.  Brown,  46  Fa.  St.  197. 

^  State  V.  Wilson,  42  Me.  9. 

»  Whitaker  v.  Brown,  46  Pa.  St.  197. 

*  Randall  v.  Randall ,  69  Me.  338. 

»  Lillibridge  V.  Lackawanna  Coal  Co.,  143  Pa.   St.  293;  24  Am.  St. 

Rep.  544.  ,,,    , 

«  Carter  v.  Wingard,  47  111.  App.  296 ;  Damery  v.  Ferguaon,  48  111.  Ai.p. 

224. 

'  Painter  v.  Pasadena  L.  &  W.  Co.,  91  Cal.  74. 


§  981  CONDITIONS,    LIMITATIONS,    ETC.  1350 

separate  corporeal  hereditament,  and  possession  of  title  to 
it  will  be  attended  with  all  the  attributes  and  incidents 
pertaining  to  the  ownership  of  land.  A  grant  of  all  the 
coal  beneath  a  tract  of  land  is  an  absolute  conveyance  in 
fee  simple  of  all  the  coal,  and  an  exception  to  the  same 
effect  in  a  grant  of  the  surface  can  give  no  greater  title/ 

§  981.      Reservation  by  tenants  in    common.— Where 

one  of  two  tenants  in  common  conveys  his  interest  to  a 
stranger,  reserving  to  himself  the  right  to  pass  and  repass 
over  the  land  to  a  woodhouse  upon  an  adjoining  lot  owned 
by  him,  the  reservation,  irrespective  of  the  question  as  to 
the  propriety  of  such  use,  is  void.  It  is  an  attempt  to 
create  a  several  limited  interest  in  land  held  in  cotenancy.^ 

^  Lillibridge  v.  Lackawanna  Goal  Co.,  143  Pa.  St.  293;  24  Am.  St.  Rep. 
544.  See,  also,  Armstrong  v.  Caldwell,  53  Pa.  St.  284;  Ryckman  v.  Gillis, 
57  N.  Y.  68;  15  Am.  Rep.  464;  Delaware  etc.  R.  R.  Co.  v.  Sanderson. 
109  Pa.  St.  583 ;  58  Am.  Rep.  743 ;  Hartwell  v.  Camman,  10  N.  J.  Eq. 
128;  64  Am.  Dec.  448;  City  of  Scranton  r.  Phillips,  94  Pa.  St.  15;  Knight 
V.  Indiana  etc.  Co.,  47  Ind.  105;  Williams  v.  Gibson,  84  Ala.  1^28;  5  Am. 
St.  Rep.  368;  Arnold  v.  Stevens,  24  Pick.  10t:>;  35  Am.  Dec.  305;  Cald- 
well v.  Copeland,  37  Pa.  St.  427;  78  Am.  Dec.  436;  Caldwell  v.  Fullon, 
31  Pa.  St.  475;  72  Am.  Dec.  760;  Riddle  v.  Brown,  20  Ala.  412;  56  Am. 
Dec.  402. 

"  Marshall  v.  Trumbull,  28  Conn.  183;  73  Am.  Dec.  667.  Said  Hin- 
man,  J:  "IS'ow  it  is  well  settled  that  one  tenant  in  common  can  neither 
sell  nor  encumber  any  part  of  the  estate  by  metes  and  bounds,  so  as  to 
prevent  such  a  diversion  or  distribution  as  would  give  the  other  tenants 
in  common  an  unencumbered  title  to  the  part  thus  sold  or  encumbered : 
Griswold  v.  Johnson,  5  Conn.  363 ;  Porter  r.  Hill,  9  Mass.  34 ;  6  Am.  Dec. 
22;  Merrill  v.  Berkshire,  11  Pick.  2o9.  Deeds  and  other  conveyances  of 
such  property  are  not  merely  inoperative  against  the  rights  of  the  other 
tenants  when  a  partition  is  made,  but  they  are,  as  remarked  by  Judge 
Hosmer,  undoubtedly  void,  and  the  other  cotenants  may  at  all  times  so 
treat  them.  It  follows,  then,  that  unless  this  reservation  or  exception  is 
in  fact  a  reservation  of  a  right  in  the  wliole  passway,  that  is,  a  reserva- 
tion of  some  aliquot  portion  of  the  plaintiff's  interest  in  it,  it  must, 
according  to  this  principle,  be  deemed  to  be  void.  But  the  right  of  a  pass- 
way  in  or  through  a  piece  of  land  is,  in  its  very  nature,  to  be  exercised 
upon  a  specific  part  of  the  land,  and  it  is  impossible  to  conceive  in  this 
case  of  a  right  in  the  plaintiff  to  pass  to  and  from  his  woodhouse  without 
interrupting  and  infringing  upon  the  rights  of  the  proprietor,  who  might 
have  that  portion  of  the  gangway  which  adjoins  the  woodhouse  aparted 
and  set  to  him.  Thus  the  effect  of  the  attempted  reservation  of  the 
passway,  if  valid,  would  be  tiie  same  as  the  granting  or  deeding  to  an- 


1351  CONDITIONS,    LIMITATIONS,    ETC.  §  0S2 

If  a  tenant  in  common  convey  all  his  estate  in  the  land 
held  in  common,  a  reservation  in  such  deed  of  his  inter- 
est in  the  mines  upon  the  land  conveyed  is  void.*  Mr. 
Chief  Justice  Shaw,  after  speaking  of  the  rule  forbidding 
one  tenant  to  convey  a  tract  by  metes  and  bounds,  said 
that  if  the  conveyance  in  question  could  avail  against  tlie 
other  cotenants,  tlie  owners  of  the  remainder  of  the  whole 
estate,  "with  all  its  incidents  unimpaired,  with  all  its  ores 
and  mines  unopened  and  unsevered,  would  be  compella- 
ble to  divide  the  soil  or  general  estate  with  one  set  of  co- 
tenants,  and  the  mines  and  ores  with  another  or  many 
other  sets  of  cotenants.  Such  a  result  would  be  attended 
with  all  the  mischief  and  inconvenience  arising  from  the 
act  of  a  cotenant,  in  attempting  to  convey  his  undivided 
part  in  a  particular  parcel,  instead  of  an  aliquot  part  in 
the  whole  common  estate.  The  same  reasons  upon  wliich 
it  is  held  that  such  a  conveyance  is  void  against  cotenants, 
will  also  avoid  the  act  of  a  part  owner  in  attempting  to 
parcel  out  rights  in  their  nature  indivisible,  in  definite 
portions  of  the  inheritance,  as  the  mines  to  one  and  the 
general  estate  to  another."^ 

§  982.  Reservation  to  third  person. — A  stranger  to  a 
deed  cannot  take  title  by  reservation.'  "  But  it  may  oper- 
ate, when  so  intended  by  the  parties,  as  an  excei)tion 
from  the  thing  granted,  and  as  notice  to  the  grantee  of 
adverse  claims  as  to  the  thing  excepted  or  'reserved.'"* 

other  of  that  part  of  the  gangway  which  does  not  adjoin  the  wocihoufie 
by  metes  and  bounds,  and  retaining  the  other  portion,  with  the  view  of 
retaining  a  passway  to  it,  which  wfmid  be  but  an  attempt  to  make  i)ar- 
tition  without  the  co-operation  of  the  other  cotenants,  and  therefore 
cannot  be  done." 

1  Adams  V.  The  Briggs  Iron  Co.,  7  Cusli.  3f.l.  The  pnintor  rctainH 
title  to  timber  excepted  from  the  operation  of  a  deed,  ami  lie  ban  the  im- 
plied power  to  enter,  fell,  and  take  it  away.  The  exc»  ption  huH  the  Hnn.e 
sffect  as  if  the  whole  estate  had  been  conveyed,  and  ilu^  granl.-»^  had 
reconveyed  the  timber  to  the  grantor :  Wait  v.  BaUiwin,  GO  iMich.  622;  1 
Am.  St.  Rep.  551. 

'  Adams  v.  Briggs  Iron  Co.,  7  Cusli.  3r.l,  370. 

»  West  Point  Iron  Co.  v.  Keymert,  45  N.  Y.  703;  Littlefinld  v.  Mott, 
14  R.  I.  288. 

*  West  Point  Iron  Co.  v.  Reymert,  45  N.  Y.  703,  per  Allen,  J. 


§  983  CONDITIONS,    LIMITATIONS,    e:"c.  1352 

While  a  reservation  strictly  such  is  ineffectual  to  create 
a  right  in  a  stranger,  it  may  still  have  effect.  Thus  in  a 
deed  with  covenants  for  quiet  enjoyment  occurred  the 
clause:  "Reserving  always  a  right  of  way,  as  now  used, 
on  the  west  side  of  the  above-described  premises,  for 
cattle  and  carriages,  from  the  public  highway  to  the  piece 
of  land  now  owned  by"  a  certain  person.  As  there  was 
in  fact  a  right  of  way  existing,  this  clause  was  construed 
as  creating  an  exception  from  the  property  conveyed.^ 

§  983.     Reservation  of  support  in  deed  to  trustees.^ — 

If  a  person  conveys  all  his  property  to  a  trustee  to  be 
applied  to  his  support  and  maintenance  during  life,  and 
upon  his  death  to  be  divided  between  his  nephews  and 
nieces,  and  the  children  of  such  as  had  died,  the  instru- 
ment is  a  deed  and  not  a  will.  It  vests  in  them  an 
interest  which  the  maker  cannot  recall.^  Such  an  in- 
strument is  not  prevented  from  taking  effect  until  the 
maker's  death,  by  reason  of  a  reservation  for  his  support, 
comfort,  and  maintenance  during  the  term  of  his  natural 
life.  A  reservation  of  this  character  is  limited  to  a  spec- 
ified purpose,  and  does  not  give  the  instrument  that 
ambulatory  quality  pertaining  to  wills.* 

^  Bridger  v.  Pierson,  45  N.  Y.  601. 

*  This  section  was  cited  in  Sharp  v.  Hall,  86  Ala.  110;  11  Am.  St. 
Rep.  28. 

^  McGaire  v.  Bank  of  Mobile,  42  Ala.  589.  See  §  309,  ante,  and  notes. 
See,  also,  §  854,  ante.  See,  also,  Karchner  v.  Hoy,  151  Pa.  St.  383 ;  Blank 
V.  Kline,  155  Pa.  St.  613.  Mistreatment  of  the  grantor  by  the  grantee 
is  sufficient  ground  for  settin'j;  aside  a  deed  made  in  consideration  of 
support :  Alford  v.  Alford,  1  Tex.  Civ.  App.  245. 

*  McGuire  v.  Bank  of  Mobile,  42  Ala.  589.  This  section  was  cited 
with  approval  in  Sharp  v.  Hall,  86  Ala.  110,  11  Am.  St.  Rep.  28,  where 
Mr.  Chief  Justice  Stone,  in  delivering  the  opinion  of  the  court,  said  :  "A 
declaration  of  trust,  by  which  the  grantor  stipulates  to  hold  in  trust  for 
himself  during  life,  with  remainder  to  a  donee  or  succession  of  donees, 
certainly  secures  no  use,  enjoyment,  or  usufruct  to  the  remainderman  dur- 
ing the  grantor's  life ;  yet  it  is  a  deed  and  not  a  will ;  1  Bigelow's  Jarman 
on  Wills,  17,  and  notes ;  Gillham  v.  Mustin,  42  Ala.  365.  Can  a  tangi- 
ble distinction  be  drawn  between  such  case  and  a  direct  conveyance, 
in  form  a  deed,  by  which  A  conveys  to  B,  to  take  effect  at  the  death  of 
A?    The  human  mind  is  not  content  with  a  distinction  that  rests  on  no 


1^5^  CONDITIOXS,    LIMITATIONS,    ETC.        §§  9S4,  9S5 

§  984.  Reservation  of  plants  making  them  personal 
property.— As  between  a  vendor  and  purchaser,  a  reser- 
vation may  make  plants  personal  property,  as  much  so  as 
if  they  had  been  taken  from  the  ground.  For  instance,  a 
person  sold  his  interest  in  land,  to  which  another  held  the 
legal  title.  By  an  agreement  in  writing  between  the  vendor 
and  purcliaser,  the  former  was  allowed  a  specified  time  for 
the  removal  of  some  wine  plants  growing  upon  the  ground. 
The  vendor  verbally  authorized  the  holder  of  the  legal  title 
to  convey  to  the  purchaser  on  the  payment  of  a  sum  of 
money,  and  this  payment  having  been  made,  the  holder 
of  the  legal  title  at  the  purchaser's  request  conveyed  the 
land  to  the  latter's  wife.  There  was  no  clause  in  this  deed 
reserving  the  wine  plants,  but  the  court  held  that  the 
written  reservation  was  valid,  and  conferred  on  the  vendor 
the  right  to  remove  the  plants  within  the  time  given. 
This  right  was  not  affected  by  the  fact  that  the  deed  con- 
tained no  reservation,  as  it  was  not  executed  by  the  vendor, 
nor  did  he  give  authority  for  its  execution  without  the 
reservation.^ 

§  985.  Big^ht  of  way. — Two  parties  obtained  title  to 
their  respective  pieces  of  land  from  the  same  grantor.  In 
the  deed  by  which  the  land  to  one  was  conveyed  was  tlie 

substantial  difference.  Conveyances  reserving  a  life  estate  to  the  prantor 
have  been  upLield  as  deeds:  2  Devlin  on  Deeds,  §  9815;  Robinson  v. 
Schley,  6  Ga.  515;  Elmore  v.  Mustin,  28  Ala.  309;  Hall  v.  r.urkhani,  59 
Ala.  349.  In  Danielr.  Hill,  52  Ala.  430,  436,  this  court  said:  «A  deed 
may  be  so  framed  that  the  grantor  reserves  to  liimnelf  the  use  and  poa- 
eession  during  his  life,  and  on  his  death  creates  a  remainder  in  fee  in  a 
stranger.'  "  "Almost  every  conceivable  form  of  conveyance,  oblination, 
or  writing  by  which  men  attempt  to  convey,  l>ind,  or  declare  the  legal  hUiIub 
of  property,  have,  even  in  courts  of  the  highest  character,  been  adjudged 
to  be  wills.  The  form  of  the  instrument  sV.umIh  for  but  little.  Wlu-never 
the  paper  contemplates  posthumous  operation,  the  inquiry  is,  What 
was  intended?  1  Jiigelow's  Jurman  on  Wills,  20,  25;  Huhergham  v. 
Vincent,  2  Ves.  Jr.  204;  Jordan  v.  Jordan,  65  Ala.  301  ;  Daniel  v.  Hill, 
52  Ala.  430;  Sliepherd  v.  Nahors,  6  Ala.  631;  Kinnei)rew  v.  Kinnebrew, 
35  Ala.  638.  The  intention  of  the  maker  is  the  controlling  iiKjuiry.  and 
that  intention  is  to  be  gathere<l  irimirily  from  th"  liin;.Muige  of  the  in- 
atrument  itself:  Dunn  v.  Bank,  2  Ala.  152."  Bee  4  309,  anU. 
'  King  V.  Billings,  51  111.  475. 


§  985  a  CONDITIONS,  limitations,  etc.  1354 

clause:  "Said  sixteen  feet  (east)  of  said  house  to  be  kept 
open  as  far  back  as  tlie  south  end  of  said  house."  The 
other  by  reason  of  this  reservation  claimed  a  right  of 
way,  but  it  was  decided  that,  as  the  clause  was  applicable 
to  other  matters,  such  as  obstructing  light,  air,  or  the 
view,  a  right  of  way  was  not  reserved.^  Nor  would  evi- 
dence be  admissible  for  the  purpose  of  aiding  in  tlie  con- 
struction of  the  deed,  by  showing  that  for  more  than 
twenty  years  prior  to  the  acquisition  of  the  title  by  the 
grantor  of  these  two  parties,  that  the  way  had  been  used.^ 

§   985  a.       Right    to    pass     reserved    merely.  —  By    a 

reservation  of  a  right  of  way  over  an  alleyway,  merely 
ihe  right  to  pass  through  it  is  reserved,  and  the  owner 
of  the  land  may  use  it  in  any  manner  he  wishes,  if 
he  does  not  prevent  the  reasonable  use  of  the  way  as  a 
means  of  passage.^  Where  a  right  of  way  is  reserved,  but 
not  specifically  defined,  it  need  only  be  such  as  reasonable 
necessity  and  convenience  for  the  purpose  for  which  it  was 
created  demand.^  Unless  expressly  provided  otherwise, 
the  owner  may  build  over  a  right  of  way  if  he  leaves  the 
ground  unobstructed  for  a  reasonable  height  above.  The 
right  to  pass  and  repass  does  not  carry  with  it  the  right 

1  Wilder  v.  Wheeldon,  56  Vt.  344. 

"  Wilder  v.  Wheeldon,  56  Vt.  344. 

»  Grafton  v.  Moir,  130  N.  Y.  465 ;  27  Am.  St.  Rep.  533.  See  Kripp  v. 
Curtis,  71  Cal.  63;  Bodfish  v.  Bodfish,  105  Mass.  319;  Stuyvesant  v. 
Woodruff,  21  N.  J.  L.  133;  47  Am.  Dec.  156.  '"Eight  of  way,  in  its 
strict  meaning,  is  the  right  of  passage  over  another  man's  ground' ;  and 
in  its  legal  and  generally  accepted  meaning  in  reference  to  a  railway,  it 
is  a  mere  easement  in  the  land  of  others,  obtained  by  lawful  condem- 
nation to  public  use  or  by  purchase:  Mills  on  Eminent  Domain,  §  110. 
It  would  be  using  the  term  in  an  unusual  sense  by  applying  it  to  an 
absolute  purchase  of  the  fee  simple  of  lands  to  be  used  for  a  railway  or 
any  other  kind  of  way"  :  Williams  v.  Western  Union  Ry.  Co.,  50  Wis.  76. 

*  Grafton  v.  Moir,  130  N.  Y.  465;  27  Am.  St.  Rep.  533;  Bakeman  v. 
Talbot,  31  N.  Y.  366;  88  Am.  Dec.  275;  Rexford  v.  Marquis,  7  Lans.  249; 
Tyler  v.  Cooper,  47  Hun,  94;  124  N.  Y.  626;  Bliss  v.  Greeley,  45  N.  Y. 
671;  6  Am.  Rep.  157;  Atkins  v.  Bordman,  2  Met.  457;  37  Am.  Dec.  100; 
Maxwell  v.  McAtee,  9  B.  Mon.  20;  48  Am.  Dec.  4C9;  Matthews  v.  Dela- 
ware etc.  Canal  Co.,  20  Hun,  427;  Spencer  v.  Weaver,  20  Hun,  450; 
Johnson  v.  Kinnicutt,  2  Cush.  153. 


1355  CONDITIONS,    LIMITATIONS,    ETC.         §§  9S6,  987 

to  light  and  air  above  the  passageway.^  But  where  the 
deed  provides  for  a  passageway  for  light  and  air,  and 
always  to  be  kept  open  for  the  purposes  named,  it  con- 
veys the  right  to  the  unobstructed  passage  of  light  and 
air  from  the  ground  upward.^ 

§  986.  Maintenance  of  tollhouse. — In  the  convey- 
ance of  a  farm  a  strip  of  land  was  reserved  until  a  gravel 
road  having  its  only  tollhouse  and  gate  there,  should  re- 
move its  place  of  collecting  toll  from  the  land  conveyed. 
Subsequently  the  company  owning  the  tollroad  erected  a 
second  tollhouse  and  gate  at  another  place.  It  collected 
its  principal  tolls  at  this  place,  but  still  maintained  a  toll- 
house at  the  old  place,  at  which  only  a  trifling  amount 
was  collected.  The  court  held  in  a  suit  of  ejectment  by  a 
subsequent  purchaser,  that  he  owned  the  strip  of  land 
and  w^as  entitled  to  its  possession.  "  Looking  to  the  sub- 
stance and  not  to  the  mere  form,"  said  the  court,  "the 
event  contemplated  by  this  language  of  the  deed  had  oc- 
curred. If  the  occupation  of  the  land  was  still  benefi- 
cial, as  a  sort  of  outpost,  for  the  purpose  of  securing  the 
collection  of  a  greater  amount  of  tolls  at  the  new  toll- 
house than  would  probably  be  collected  there  if  the  old 
one  were  abandoned,  this  was  not  the  purpose  for  which 
the  reservation  was  made  in  said  deed.  The  use  of  the 
old  house  for  other  beneficial  purposes  than  that  of 
gathering  tolls  at  that  place,  and  the  collectionof  a  merely 
nominal  amount  of  tolls  there,  while  the  substantial 
revenue  of  the  col-poration  was  collected  atanotiier  place, 
amounted,  we  think,  to  a  change  of  tlie  place  of  collecting 
toll,  such  as  was  contemplated  by  said  deed."  * 

§  987.  Unincorporated  town. — As  tlie  inhabitants  of 
an  unincorporated  town  are  incapable  in  law  of  taking  an 
estate  in  fee,  a  proviso  in  a  deed  reserving  to  the  inhabit- 

1  Gerrish  v.  Shattuck,  132  U&m.  23.5;  r.uriiJiam  r.  Nevina,  144  Mans. 
88;  59  Am.  Rep.  61. 

»  Brooks  V.  Reynolds,  106  Mass.  31. 

»  Lafayette  Wildcat  Gravel  K.  R.  Co.  v.  Vanclain,  92  Ind.  153. 


§§988,989     CONDITIONS,  limitations,  etc.  1356 

ants  of  such  a  town  the  right  to  cut  wood  on  the  lands 
conveyed  when  not  in  fence,  is  void.  Even  if  operative, 
the  right  would  inure  only  to  the  inhabitants  of  the 
town  living  at  the  time  of  the  grant,  as  no  words  of  per- 
petuity are  contained  in  the  proviso/ 

§  988.  Passag-eway. — Where  a  deed  contained  the 
clause,  "reserving,  however,  a  privilege  to  pass  and  repass 
through  said  lot  of  land  to  the  outer  cellarway,  and 
through  said  way  and  cellar  where  it  may  do  the  least 
damage,"  it  was  held  that  the  grantor  by  this  reservation 
retained  the  right  of  passage  through  the  cellar,  even 
when  there  was  no  particular  necessity  for  him  to  be 
there,  and  that  it  was  proper  to  show  tiiat  he  had  used 
the  passage  through  the  cellar  in  a  certain  manner,  with- 
out objection  from  the  grantee,  in  order  to  determine 
what  the  reservation  intended.^ 

§  989.  Construction  in  particular  cases. — A  grantor 
conveyed  land,  "  excepting  and  reserving"  to  himself,  his 
heirs  and  assigns,  "  a  passageway  four  feet  wide,  in, 
through,  and  over  said  premises,"  from  a  street  by  which 
the  land  was  bounded  to  the  grantor's  house,  on  an  ad- 
joining piece  of  land,  and  the  way  was  subsequently 
located  by  the  parties  on  the  northerly  side  of  the  land 
conveyed.  The  grantee  dug  up  the  way,  and  began  to 
build  upon  and  over  it.  It  was  held  that  he  had  the  right 
to  build  over  the  way,  if  he  placed  no  part  of  the  build- 
ing upon  it,  and  left  !t  of  a  reasonable  height,  and  that 
the  grantor  was  entitled  to  have  the  soil  of  the  way  re- 
stored to  its  former  condition.^  Land  conveyed  by  deed 
was  described  as  *'  all  that  piece  or  parcel  of  land  de- 
scribed as  follows,  to  wit,  being  the  northeast  quarter  of 
section  32,  except  forty  acres  in  the  southeast  corner  of 
said  section  32."  The  court  held  that  the  forty  acres 
excepted  did  not  pass  by  the  deed,  and  that  any  technical 

1  Hornbeck  v.  Westbrook,  9  Johns.  73. 
*  Ohoate  v.  Burnham,  7  Pick.  274. 
8  Gerrish  v.  Shattuck,  132  Mass.  235. 


1357  CONDITIONS,    LIMITATIONS,    ETC. 


989 


rule  of  the  common  law  inconsistent  with  this  decision, 
was  not  in  force  in  Minnesota.^  A  deed  which  reserves  a 
road  of  a  certain  width  to  be  shut  at  each  end  by  a  bar  or 
gate,  reserves  only  a  right  of  way,  and  not  the  fee  of  the 
land  reserved  for  a  road.^  Where  land  is  conveyed  to  a 
railroad  corporation  by  a  deed  containing  a  clause,  "re- 
serving to  myself  the  riglit  of  passing  and  repassing,  and 
repairing  my  aqueduct  logs  forever,  through  a  culvert  six 
feet  wide,  and  rising  in  height  to  the  superstructure  of  the 
railroad,  to  be  built  and  kept  in  repair  by  said  company," 
the  clause  is  construed  as  a  reservation  and  not  an  ex- 
ception. The  grantor  has  by  it  an  estate  for  life  only/ 
The  right  of  wharfing  is  included  in  a  reservation  of  all 
privileges  around  a  lot  bounded  by  tide  water.*  A  reser- 
vation in  the  form,  "reserving  all  that  part  of  said  lot 
which  is  now  used  and  occupied  by  the  Iron  Mining  Com- 
pany for  railroad  or  railway  purposes,"  is  sufficiently 
definite  and  certain,  where  a  portion  of  the  lot  was  so 
occupied  at  the  time  the  deed  was  executed.®  Where  A 
conveyed  land  to  B,  "reserving  all  the  right  that  C  may 
have  to  fasten  a  dam  across  said  river  and  to  said  prem- 
ises, and  all  rights  said   C  has  in  the  same,"  this  clause 

^  Babcock  v.  Latterner,  30  Minn.  417.  See  Jackson  v.  Vickory,  1  Wend. 
406;  19  Am.  Dec.  522. 

=•  Kiater  v.  Reeser,  98  Pa.  St.  1;  42  Am.  Rep.  608.  See,  also,  Mav^mx 
V.  Campbell,  8  Port.  9;  33  Am.  Dec.  267.  And  see  Brown  v.  Meady,  10 
Me.  391 ;  25  Am.  Dec.  248. 

»  Ashcroft  V.  Eastern  R.  R.  Co.,  126  Mass.  196;  30  Am.  Rop.  672. 

*  Parker  v.  Rogers,  8  Or.  183. 

'  Reidinger  v.  Cleveland  Iron  Mining  Co.,  39  Midi.  30.  And  see, 
also,  Jobnson  v.  Asbland  Lumber  Co.,  47  Wis.  3.'6.  In  Hocktifclli-r  i;. 
Arlington,  91  111.  375,  an  owner  of  land  had  laid  out  a  blcx-k  and  Hub- 
divided  it  into  lots,  placing  stones  at  the  corners  of  the  block.  Ho  sold 
two  lots,  and,  after  the  purchaser  had  taken  poflsession,  conveyed  the 
whole  tract,  "excepting  five  lots  in  the  first  block,  and  eecond  lot  in 
second  block,  south  of  the  railroad  and  phinkroad,  as  tlui  same  Hhall  bo 
hereafter  subdivided  into  village  lota  by  the  grantee  or  hJH  iwMignH,  Haid 
lots  having  been  heretofore  sold,"  by  the  grantor.  The  exception  in  tiie 
deed  was  considered  not  to  be  void  for  uncertainty,  and  the  deed  was 
held  not  to  pass  the  title  to  the  lots  previously  Hold.  For  a  caH.'  in  which 
an  excepting  clause  was  held  void  for  uncertainty,  Bee  Ditmau  v.  Uly- 
bourn,  4  HI.  App.  542, 


§   989  CONDITIONS,    LIMITATIONS,    ETC.  1358 

was  held  to  create  an  exception,  and  not  a  reservation;  a 
covenant  of  seisin  in  A's  deed  to  B  was  not  broken  by 
reason  of  C's  interests.*.  A  clause  in  a  town  lot,  "  sav- 
ing and  excepting  the  water  privileges  of  a  stream 
known  as  Trout  Brook,  to  be  carried  through  the  said 
described  lot  as  aforesaid  in  a  raceway,"  does  not  con- 
fer a  right  of  carrying  the  waters  of  the  brook  across 
the  lot  through  a  flume  erected  upon  trestlework  of  a 
height  of  several  feet.  The  only  riglit  conveyed  is  that 
of  carrying  the  water  through  an  artificial  canal  in  the 
earth;  the  erection  of  a  flume  may  be  restrained  by  injunc- 
tion.^ A  stipulation  that  certain  timber  excepted  from 
the  operation  of  the  deed  should  be  removed  within  a 
specified  time,  does  not  render  the  exception  conditional 
on  the  removal.^  Where  a  grantor  in  a  deed  conveying 
five  parcels  of  land  inserts  the  clause,  "possession  to  be 
given  the  said  grantee  of  the  house  and  garden  above 
specified  (the  first  parcel)  immediately,  and  one  undivided 
half  of  all  the  other  tracts  of  land  specified  above,  reserv- 
ing the  buildings  now  occupied  by  myself  at  my  decease," 
he  intends  to  reserve  to  himself  only  the  buihlings  men- 
tioned, and  not  a  life  estate  in  the  undivided  half  of  the 
four  parcels  of  land.*  If  a  deed  reserves  "all  the  standing 
wood  upon  a  lot,  together  with  the  right  to  enter  and  re- 

1  Stockwell  V.  Couillard,  129  Mass.  231. 

'  Wilder  v.  De  Cou,  2B  Minn.  10.  A  clause,  "reserving  a  passway 
from  the  road  aforesaid,  over  or  by  said  lot  to  the  barn  standing  on  the 
adjoining  lot,  being  said  Mary's  (tlie  grantor's)  dwelling-iiouse  lot," 
creates  a  reservation  of  a  right  of  way  to  the  dwelling-house  lot  for  such 
objects,  as  it  would  be  proper  to  use  a  way  to  the  barn  appurtenant  to 
the  dwelling-house.  The  right  of  the  grantee  is  not  lost  by  the  destruc- 
tion of  the  barn,  which  existed  on  the  lot  at  the  time  of  the  reservation: 
Bangs  V.  Parker,  71  Me.  458. 

3  Irons  V.  Webb,  41  N.  J.  L.  203;  32  Am.  Rep.  193.  See  Terkins  v. 
Stockwell,  131  Mass.  529. 

*  Shannon  v.  Pratt,  131  Mass.  434.  Where  the  only  valual  le  mineral 
found  in  the  region  at  the  time  of  tlie  conveyance  was  iron  ore,  a  reser- 
vation in  the  deed  to  the  grantor  of  "all  mines  and  ores  of  metal  that  are 
now  or  may  be  hereafter  found  on  said  land"  will  not  include  marbie  or 
serpentine  deposits  subsequently  discovered  :  Deer  Lake  Co.  v.  Mi  higan 
Land  etc.  Co.,  89  Mich.  180.  Where  a  store  is  reserved,  sufficient  ground 
therefor  is  also  reserved :  Moultou  v.  Traf ton,  64  Me.  218. 


1359  CONDITIONS,    LIMITATIONS,    ETC,  §  989 

move  the  same  at  any  time  within  three  years,"  and  tliere 
is  nothing  in  any  other  part  of  the  deed  to  indicate  that 
the  term  "standing  wood"  is  used  in  a  limited  sense,  trees 
suitable  for  timber,  as  well  as  trees  suitable  for  fuel,  will 
be  incduded  in  the  reservation.^ 

1  Strout  V.  Harper,  72  :\Ie.  270.  For  other  cases  in  which  reservations 
and  exceptions  have  been  construed,  see  Getchell  v.  Whittemore,  72  iMe. 
393;  Roberts  v.  Robertson,  53  Vt.  690;  38  Am.  Rep.  710;  Knapp  «. 
Woolverton,  47  Mich.  292;  Alden's  Appeal,  93  Pa.  St.  182;  Kaidle  v. 
Knechc,  99  111.  396;  Perkins  v.  Stockwell,  131  -Mass.  529;  Williamson 
V.  Yingling,  80  Ind.  '^79 ;  Kuhn  v.  Farnsworth,  69  Me.  404  ;  Moses  v.  Eagle, 
etc.  Mtg.  Co.,  62  Ga.  455;  Hardwick  v.  Laderoot,  39  Mich.  419;  Hartley 
V.  Crawford,  81  *Pa.  St.  478;  Fisher  v.  Nelson,  8  Mo.  App.  90;  Lewis  v. 
Loomis,  50  Wis.  497;  Bridger  ?>.  Pierson,  1  Lans.  481 ;  Hawes  v.  Louisville, 
5  Bush,  6H7;  Cheney  v.  Pease,  99  Mass.  448;  Dean  r.  Colt,  99  Mass.  480; 
Sargent  v.  Hubbard,  102  Mass.  380;  Sparhawky.  Bagg,  16Gray,58>?;  Clark 
V.  Cottrell,  42  N.  Y.  527;  Woodcock  v.  Estey,  43  Vt.  515;  Farqnharson  v. 
McDonald,  2  Heisk.  404 ;  McDaniel  v.  Johns,  45  Miss.  632 ;  Cook  v.  Wesner, 

1  Cin.  2h);  Bourgeois  v.  Thibodaux,  23  La.  Ann.  19;  Cottle  v.  Young,  59 
Me.  105;  Emerson  v.  Mooney,  50  N.  H.  315;  Reformed  Ciiur.h  v.  School- 
craft, 5  Lans.  206 ;  Haynes  v.  Jackson,  59  Me.  386 ;  Artliur  v.  Case,  1  Paijic, 
447;  Swick  v.  Sears,  1  Hill,  17;  Ten  Brock  v.  Livingston,  1  John*.  357; 
Leavitt  v.  Towle,  8  N.  H.  96;  Rood  v.  Johnson,  26  Vt.  64;  Mixer  v. 
Reed,  25  Vt.  254;  Cathcart  v.  Chandler,  5  Strob.  19;  Hay  v.  Storrs, 
Wright,  711 ;  Massey  r.  Warren,  7  Jones  (N.  C),  143;  \Vliilted  v.  Smith, 

2  Jones  (N.  C.),  36;  Champlain  &  St.  Lawrence  R.  R.  Co.  v.  Valcntiiu', 
19  Biirb.  484;  Allen  v.  Scott,  21  Pick.  25;  32  Am.  Dec.  238;  Loomis  v, 
Pin-jree,  43  Me.  299;  Louk  v.  Wools,  15  111.  256;  Blossom  r.  Feriruson, 
13  Wis.  75;  Cooney  v.  Hayes,  40  Vt.  478;  94  Am.  Dec.  425;  Rich  v.  Zeils- 
dorf,  22.  Wis.  544;  99  Am.  Dec.  81 ;  Ballou  v.  Harris,  5  R  I.  419;  Knotts 
V.  Hudrick,  12  Rich.  314;  Keeler  w.  Wood.  30  Vt.  242;  Patterson  r.  Pat- 
terson, 1  Hayw.  (N.  C),  163;  Hays  v.  Askew,  5  Jontss  (X.  C),  63;  City  of 
Cincinnati  v.  Newell,  7  Ohio  St.  37;  Shoofstall  v.  Powell.  1  Cirant  Cn-.  19; 
Cathcart  v.  Bowman,  5  Pa.  St.  317;  Sahl  v.  Wrght,  6  Pa.  St.  43:-;;  Joiin- 
son  V.  Zink,  52  liarb.  39f);  Rose  v.  Bunn,  21  N.  Y.  274;  Bartlett  r.  Jndd, 
2l  N.  Y.  200;  78  Am.  Dec.  131 ;  Esty  v.  Currie:-,  98  Mass.  500:  H(.<i;:o  c. 
Boothby,  48  Me.  68;  Hill  v.  Lord,  48  Me.  83;  AdauM  r.  M..rse.  51  Mo. 
497;  Earle  v.  Dawes,  3  Md.  Ch.  230;  Veall  r.  Carpenter.  14  (Jrav  12^1; 
Cronin  v.  Richardson,  8  Allen,  423;  .McDowell  v.  i5r..wn.  21  M<».  57; 
Carradine  V.  Carradine,  33  -Miss.  698;  Ward  v.  Ward.  Man.  (N.  C.)  28; 
Evans  v.  Labaddie,  10  Mo.  426;  Stratton  v.  Gold,  40  Minn.  778;  Loifun  v. 
Caldwell  23  Mo.  373;  Webster  v.  Webster.  33  N.  H.  18;  6<l  A-n.  Dee. 
705;  Turners.  Cool,  23  Ind.  56;  85  Am.  Dec.  419;  ThurWon  v.  MuHter- 
Bon,  9  Dana,  228;  Howard  v.  Lincoln,  12  Me.  122;  Tiitlle  t;.  Walker,  46 
ZSIe.  280;  Brown  v.  M.  ady,  10  Me.  (1  Fairf.)  391;  25  Am.  iVc.  248; 
Richardson  v.  York,  14  Me.  216;  Ballard  r.  Ihill.-r.  '.V)  M.-,  tH  ;  larley  v. 
Bryant,  a2  Me.  474;  Moallon  v.  Fannin,  41  Mo.  298;  Cromwell  v.  ScKlcn, 


§  990  CONDITIONS,    LIMITATIONS,    ETC,  1360 

§  990.  Restrictions  and  stipulations. — A  deed,  like  any 
other  contract,  may  contain  stipulations  and  restrictions  of 
various  kinds.  Courts  in  construing  them  will  endeavor  to 
ascertain  the  intention  of  the  parties,  and  will  give  effect 
to  such  intention  when  ascertained.  Where  a  railroad 
company  acquired,  by  a  grant  from  the  city,  the  right  and 
privilege  of  using  four  distinct  parts  of  certain  streets,  by 
virtue  of  four  distinct  paragraphs  contained  in  the  deed — 
in  the  last  paragraph,  immediately  following  the  fourth 
grant,  occurring  the  limitation,  "said  right  and  privilege 
to  be  enjoyed  until"  a  specified  time,  the  restriction  was 
considered  as  not  applying  to  the  three  grants  first  con- 
tained in  the  deed.-^  Restrictions  inserted  in  a  deed  as  a 
part  of  a  scheme  for  a  plan  of  improvement,  are  not  to  be 
deemed  conditions  in  the  technical  sense,  although  spoken 
of  as  conditions.  A  forfeiture  does  not  arise  from  their 
breach.^  If  a  deed  contains  a  restriction  that  no  build- 
ing shall  be  placed  upon  the  land  within  a  specified  dis- 
tance of  a  street,  the  street,  as  it  existed  at  the  time  of  the 
imposition  of  the  restriction,  and  not  as  subsequently 
altered  by  public  authority,  is  the  one  to  which  reference 
is  considered  to  be  made.^     Where  a  deed  conveyed  land 

3  N.  Y.  253;  Logan  v.  Caldwell,  23  Mo.  373;  Thompson  v.  Gregory,  4 
Johns.  81 ;  4  Am.  Dec.  255;  Jackson  v.  Lawrence,  11  Johns.  191 ;  Colby 
V.  Colby,  28  Vt.  10 ;  MuUer  v.  Boggs,  25  Cal.  175 ;  Humphrey  v.  Hum- 
phrey, 1  Day,  271;  Hart  v.  Conner,  25  Conn.  331;  House  t;.  Palmer,  9 
Ga.  497;  Marshall  t;.  Trumbull,  28  Conn.  183;  73  Am.  Dec.  667;  Everett 
V.  Dockery,  7  Jones  (N.  C),  390;  Altman  v.  McBride,  4Strob.  208;  Horn- 
back  V.  Westbrook,  9  Johns.  73;  Daniel  v.  Veal,  32  Ga.  589:  French  v. 
Carhart,  1  Comst.  (1  N.  Y.)  9G ;  Bowen  v.  Conner,  6  Cush.  132;  Burdea 
V.  Stein,  27  Ala.  104;  62  Am.  Dec.  758;  Hurd  v.  Hurd,  64  Iowa,  414, 
King  V.  Bishop,  62  Miss.  553;  Perkins  v.  Aldrich,  77  Me.  96;  Foster  v. 
Foss,  77  Me.  279 :  Varner  v.  Rice,  44  Ark.  236 ;  Dunn  v.  Sanford,  51 
Conn.  443;  Dennison  v.  Taylor,  15  Abb.  N.  O.  439. 

1  Quincy  v.  Chicago,  Burlington  etc.  R.  R.  Co.,  94  111.  537. 

»  Ayling  v.  Kramer,  133  Mass.  12. 

'  Tobey  v.  Moore,  130  Mass.  448.  If  a  deed  contains  the  restriction 
that  the  front  wall  of  any  building  erected  on  the  lot  should  be  set  back 
a  distance  of  twenty-two  feet  from  the  street,  with  the  proviso  that 
"steps,  windows,  porticos,  and  other  usual  projections  appurtenant 
thereto  are  to  be  allowed  in  said  reserved  space  of  twenty-two  feet,"  the 
restriction  is  violated  by  the  projection  of  the  whole  front  wall,  except 


1361  CONDITIOXS,    LIMITATIONS,    ETC.  §  990 

bounded  on  one  side  by  a  street,  and  on  another  by  a  rail- 
road,  and  contained  the  dause,  "subject  to  the  condition 
that  no  building  shall  ever  be  placed  on  that  part  of  the 
same  lying  within  twenty-five  feet  of  said  street,  and,  also, 
that  the  present  occupant  of  a  part  of  the  premises  near 
said  railroad  for  a  lumberyard  shall  be  allowed  the  time 
until  October  1st,  next,  to  remove  his  lumber  and  evacu- 
ate the  premises,  but  no  longer  without  the  consent  of 
said  grantee,"  both  clauses  take  effect  only  by  way  of 
restriction.  In  the  absence  of  evidence  that  the  restric- 
tion was  imposed  for  the  benefit  of  other  land,  it  is  con- 
strued as  a  personal  covenant  merely  with  the  grantor.' 
If  a  deed,  in  describing  the  lot  of  land  conveyed,  refers  to 
a  plan,  this  reference  does  not  import  a  stipulation  by 
the  grantor  against  subsequently  changing  tlie  plan  in 
any  respect,  in  parts  not  adjacent  to  the  land  conveyed.^' 
A  restriction  forbidding  the  use  of  a  building  for  the 
trade  of  a  butcher,  or  for  any  "nauseous  or  offensive  trade 
whatsoever,"  or  for  a  purpose  "which  shall  tend  to  dis- 
turb the  quiet  or  comfort  of  the  neighborhood,"  does  not 
prevent  the  use  of  the  building  for  the  sale  of  groceries 
and  provisions.^  But  where  a  deed  contains  a  restriction 
that  no  building,  with  the  exception  of  a  dwelling-house, 

less  than  two  feet  at  each  end,  into  the  reserved  space,  into  the  form  of 
a  bay  extending  up  the  whole  height  of  the  iiouse,  with  a  foun<lation, 
roof,  and  windows.  This  is  true,  notwithstanding  such  projections  had 
been  usual  in  the  city  for  several  years,  and  that  the  grantor  subse- 
quently conveyed  lots  in  the  same  locality  permitting  such  projections: 
Linzee  v.  Mixer,  101  Mass.  512. 

^  Skinner  v.  Shepard,  130  Mass.  180.  Where  a  deed  contained  a  re- 
striction that  no  building  should  be  placed  upon  the  land  within  ten 
feet  of  the  street,  the  erection  of  a  brick  wall  nix  feet  high,  with  a  coping 
one  foot  in  height,  to  be  used  as  a  fence  or  wall  on  the  line  of  the  wtroot, 
does  not  violate  this  restriction:  iNowell  v.  Acadi'my  of  Notre  Dame,  I'M 
Mass.  209.  For  a  case  in  which  certain  erections  were  held  to  \hi  a  vio- 
lation of  a  restriction,  that  the  front  line  of  the  building  should  Ik) 
fifteen  feet  from  the  street,  and  "  that  no  dwelling-house  or  olht-r  build- 
ing shall  be  erected  on  the  rear  of  said  lot,"  see  Banborn  v.  Kice,  129 
Mass.  387. 

»  Coolidge  V.  Dexter,  129  Mass.  167. 

•  To  bey  v.  Moore,  130  Mass.  448. 
LiEJiW,  Vol.  1L— 86 


§  090  a  CONDITIONS,    LIMITATIONS,    ETC.  1362 

sliall  be  erected  on  the  lot,  and  that  such  building  when 
erected  shall  not  be  used  for  the  purpose  of  carrying  on 
any  offensive  trade  or  calling,  the  erection  of  a  building 
and  the  occupation  of  the  lower  story  as  a  retail  grocery 
constitute  a  violation  of  the  restriction.  The  use  of  the 
building  in  this  manner  may  be  restrained  by  injunction.^ 

§  990  a.  OflPensive  occupations. — A  restriction  may  be 
inserted  in  a  deed,  prohibiting  the  use  of  the  premises 
for  classes  of  business  deemed  offensive  by  the  grantor.^ 
The  restriction  may  prohibit  the  carrying  on  of  any  trade 
or  business.*  A  clause  preventing  the  carrying  on  of  cer- 
tain kinds  of  business  may  also  exclude,  in  general  terms, 
other  kinds  of  business  as  being  offensive,  which  are  not, 
strictly  speaking,  nuisances.  Thus,  the  owner  of  several 
adjoining  lots  inserted  a  stipulation  in  the  deeds  when  sell- 
ing them  to  the  purchasers,  "  for  themselves,  and  their  rep- 
resentatives, heirs,  and  assigns,  owners  of  any  of  the  said 
lots  above  described,  that  no  buildings  other  than  dwelling- 
houses,  at  least  two  stories  high,  of  brick  or  stone,  or 
churches,  chapels,  or  private  stables,  of  the  same  material, 
shall  be  erected  on  any  of  said  lots;  that  no  livery  or  other 
stable  shall  be  erected  on  lots  fronting  on  Madison  Avenue, 
and  that  there  shall  not  be  allowed,  or  erected  on  any 
part  of  said  lots  of  land,  any  tenement  house,  brewery,  or 

1  Dorr  V.  Harrahan,  101  Mass.  531 ;  3  Am.  Rep.  398.  This  case  differs 
from  Tobey  v.  Moore,  130  Mass.  448,  in  that  the  grantee  was  restricted 
from  erecting  anything  but  a  dwelling-house.  See,  also,  Linzee  v.  Mixer, 
101  Mass.  512.  For  other  cases  in  which  restrictions  and  stipulations 
have  been  construed,  see  Higman  v.  Stewart,  38  Mich.  513;  Chapman  v. 
Gordon,  29  Ga.  250;  Hicks  v.  McGarry,  38  Mich.  667;  Scott  v.  Ward,  13 
Cal.  458;  Beals  v.  Case,  138  Mass.  138;  Thompson's  Appeal,  101  Pa.  St. 
225;  Barker  v.  Barrows,  138  Mass.  578. 

»  Barrow  v.  Richard,  8  Paige,  351;  35  Am.  Dec.  713;  Whitney  v. 
Union  Ry.  Co.,  11  Gray,  359;  71  Am.  Dec.  715;  Cross  v.  Frost,  64  Vt. 
179;  Rowland  v.  Miller,  139  N.  Y.  93;  Dorr  v.  Harrahan,  101  Mass.  531; 
Hall  V.  Ervin,  37  Ch.  D.  74;  Brouwer  v.  Jones,  23  Barb.  153;  Bramwell 
1).  Lacey,  10  Ch.  D.  691;  Gannett  t;.  Albree,  103  Mass.  372;  Morris  v. 
Tuskaloosa  Mfg.  Co.,  83  Ala.  565;  Winnipesaukee  Camp  Meeting  Assn. 
V.  Gordon,  63  N.  H.  505. 

»  Trustees  v.  Thacher,  87  N.  Y.  311;  41  Am.  Rep.  365. 


1363 


CONDITIONS,    LIMITATIONS,    ETC.  8  990  a 


lager  beer  saloon,  tavern,  slaughterhouse,  forge,  furnace, 
steam  engine  foundry,  carpenter's  or  carriage  or  car  shop[ 
manufactory  of  metals,  gunpowder,  glue,  varnish,  vitriol' 
turpentine,  ink  or  matches,  or  any  distillery,  or  any  es^ 
tablishnient  for  dressing  hides,  skins,  or  leather,  or  any 
museum,  theater,  circus,  or  menagerie,  nor  shall  any  other 
buildings  be  erected,  or  trade  or  business  carried  on  upon 
said  lots  which  shall  be  injurious  or  oifeusive  to  the 
neighboring  inhabitants;  it  being  expressly  agreed  that 
this  covenant  runs  with  the  land,  and  is  binding  on  all 
future  owners  thereof."  A.  corporation,  whose  business 
was  that  of  undertakers,  had  leased  a  building  upon  one 
of  the  lots  formerly  occupied  as  a  dwelling-house,  and  had 
fitted  it  up  and  was  using  it  for  the  reception  of  dead 
human  bodies,  their  preparation  for  burial,  the  holding 
of  autopsies,  and  for  such  other  purposes  as  were  incident 
to  their  business  as  undertakers.  The  owner  of  one  of 
the  lots  sold  brought  an  action  to  restrain  the  violation 
of  the  agreement,  and  the  court  held  that  the  business 
was  an  offensive  one  within  the  meaning  of  the  agree- 
ment, and  that  the  court  could  take  judicial  notice  of  its 
nature,  and  hence  granted  an  injunction.^     But  where  a 

^  Rowland  v.  Miller,  139  N.  Y.  93;  34  N.  E.  Rep.  7G5.  Mr.  Justice 
Earl,  in  delivering  the  opinion  of  the  court,  said  that  it  would  bo  too 
narrow  a  construction  to  hold  that  the  agreement  prohibited  only  tradoa 
or  k'nds  of  business  which  are  nuisances  perse,  and  con'inued:  "  This 
clause  in  the  agreement  must  have  a  reasonable  lonstruction.  Wo  can- 
not sunpose  that  the  parties  had  in  mind  any  business  which  mi^'ht  l>e 
offenpive  to  a  person  of  a  supersensitive  organization,  or  to  one  of  a 
peculiar  and  abnormal  temperament,  or  to  the  small  clans  of  jwrsona 
■who  are  generally  annoyed  by  sights,  souniln,  and  objects  not  offenHivo 
to  other  people.  Tliey  undoubtedly  had  in  mind  ordinary,  normal 
people,  and  meant  to  prohibit  trades  and  business  which  would  be  offi-n- 
Bive  to  people  generally,  and  would  thus  render  the  neighborhood  to 
such  people  undenirable  as  a  place  of  residence.  It  cannot  be  doubted 
that  the  business  of  the  Taylor  Company  was,  within  this  dellsiition, 
offensive  to  tlie  neighboring  residents.  People  of  ordinary  HCtiHibilitica 
would  not  willingly  live  next  to  a  lot  upon  which  hucIi  a  buHineHB 
is  carried  on.  Any  ordinary  person  desiring  to  rent  Huch  a  houBe  as 
plaint. ff's,  would  not  take  her  house  if  ho  couM  get  one  juHt  like  it.  at 
the  same  rent,  at  some  other  suitable  and  convenient  y>lace.  Indeed,  licr 
house  would  be  shdnned  by  people  generally,  who  could  afford  to  live  in 


§  990  b  CONDITIONS,    LIMITATIONS,    ETC.  1364 

deed  prohibits  the  carrying  on  of  "  any  nauseous  or  offen- 
sive business  whatever,"  it  is  mainly  a  question  of  fact 
whether  the  erection  of  a  stable  comes  within  the  lan- 
guage of  the  restriction/  A  deed  contained  a  covenant 
against  using  the  premises  for  certain  specified  businesses, 
and  concluded  with  the  general  clause,  "or  any  other 
manufactory,  trade,  or  business  whatsoever  which  should 
or  might  be  offensive  to  the  neighboring  inhabitants." 
It  was  considered  that  carrying  on  the  business  of  a  coal 
yard  was  prohibited  by  this  restriction.^ 

§  990  Ij.  Biiilding-  lines. — It  is  a  common  practice  to 
insert  in  deeds  a  restriction  that  buildings  that  may  be 
erected  shall  be  distant  a  specified  space  from  the  front 
line  of  the  lot,  and  such  restrictions  are  valid.  The 
grantee  under  such  a  deed  does  not  acquire  an  absolute 
and  unqualified  title,  but  it  is  a  part  of  the  title  which  he 
accepts,  that  the  use  of  the  land  shall  be  limited  and  re- 
stricted as  provided  by  the  deed.^  "  It  often  happens," 
says  Mr.  Justice  Soule,  "  that  owners  of  land,  which  they 
design  to  put  into  market  lots  for  dwelling-houses,  insert 
in  the  deeds  of  the  several  lots  a  uniform  set  of  restric- 
tions as  to  the  purposes  for  which  the  land  may  be  used, 

such  an  expensive  house.  The  courts  can  take  judicial  notice  of  the  offen- 
sive character  of  such  a  business.  Judges  must  be  supposed  to  be  ac- 
quainted with  the  ordinary  sentiments,  feelings,  and  sensibilities  of  tlie 
people  among  whom  they  live,  and  hence,  in  this  case,  the  learned  judge, 
after  the  character  of  the  business  carried  on  by  the  Taylor  Company 
had  been  proved,  could  have  found,  as  a  matter  of  law,  that  it  was  a 
violation  of  the  restriction  agreement  without  any  further  proof." 

1  Whitney  v.  Union  Railway  Co.,  11  Gray,  359;  71  Am.  Dec.  715. 

*  Barrow  v.  Richard,  8  Paige,  351;  35  Am.  Dec.  713.  Where  the 
conditions  have  changed  so  that  the  enforcement  of  the  restriction  would 
no  longer  be  of  benefit  to  the  person  in  whose  favor  it  was  made,  the 
courts  may  refuse  to  enforce  it :  Trustees  of  Columbia  College  v.  Thacher, 
87  N.  Y.  311 ;  41  Am.  Rep.  365. 

'  Reardon  v.  Murphy,  163  Mass.  501 ;  Payson  v.  Burnham,  141  Mass. 
547;  Linzee  v.  Mixer,  101  Mass.  512;  Hamlen  v.  Werner,  144  Mass.  396; 
Bagnall  v.  Davies,  140  Mass.  76;  Peck  v.  Conway,  119  Mass.  546;  At- 
torney General  v.  Algonquin  Club,  155  Mass.  128 ;  Sanborn  v.  Rice,  129 
Mass.  387;  Attorney  General  v.  Williams,  140  Mass.  329;  54  Am.  Rep. 
568;  Attorney  General  v.  Gardiner,  117  Mass.  492. 


1365  CONDITIONS,    LIMITATIONS,    ETC.  §  OQQ  b 

and  as  to  the  portions  of  it  which  may  be  covered  by 
buildings.  So  far  as  these  restrictions  are  reasonable  in 
tlieir  character,  tliey  are  upheld  and  enforced  by  courts 
of  equity  in  favor  of  the  original  owner,  so  loni,r  as  he 
continues  to  own  any  part  of  the  tract  for  the  be'nefit  of 
which  the  restrictions  were  created,  as  well  as  in  favor  of 
the  owner  of  any  one  of  the  lots  into  which  the  tract  was 
divided,  and  against  the  owner  of  any  of  the  lots  wlio 
attempts  to  set  the  restriction  at  naught."^  Where  the 
owners  of  a  tract  of  land  lay  it  out  into  house  lots,  and 
agree  among  themselves  orally  that  the  lots  shall  be  oc- 
cupied exclusively  for  dwelling-hoases,  and  in  the  deed 
executed  by  them  insert  a  clause  that  no  buildings  shall 
be  erected  on  the  lots  except  for  dwelling-houses  only, 
the  grantee  is  bound  by  the  condition,  and  he  may  be 
prevented  by  the  purchasers  of  others  of  the  lots  from 
converting  a  dwelling-house  upon  his  lot  into  a  public 
eating-house.2     Restrictions  are  also  frequently  inserted 

*  Sanborn  v.  Rice,  129  Mass.  396. 

»  Parker  v.  Nighting:ale,  6  Allen,  341;  83  Am.  Dec.  632.  Said  Mr. 
Chief  Justice  Bigelow:  "A  court  of  chancery  will  recognize  an.l  enforce 
agreements  concerning  the  occupation  and  mode  of  use  of  real  estate, 
although  they  are  not  expressed  with  technical  accuracy,  as  exceptions 
or  reservations  out  of  a  grant  not  l)inding  as  covenants  real  running 
with  the  bind.  Nor  is  it  at  all  material  that  such  stipulations  should  be 
binding  at  law,  or  that  any  jjrivity  of  estate  should  subsist  between 
parties,  in  order  to  render  them  obligatory,  and  to  warrant  equitable 
relief  in  case  o-  their  infraction.  A  covenant,  though  in  gro.ss  at  law, 
may,  nevertheless  be  binding  in  equity,  even  to  the  extent  of  fastening 
a  servitude  or  easement  on  real  property,  or  of  securing  to  the/)wni'r  of 
one  parcel  of  land  a  privilege,  or,  as  it  is  sometimes  called,  a  right  to  an 
amenity,  in  the  use  of  an  adjoining  parcel,  by  which  his  own  estato 
may  be  enhanced  in  value,  or  rendered  more  sigreealile  as  a  place  of 
residence.  Restrictions  and  limitations  which  may  be  put  on  property 
by  means  of  such  stipulations,  derive  their  validity  from  the  right 
which  every  owner  of  the  fee  has  to  dispose  of  his  estatf,  citlicr  almo- 
luteiy  or  by  a  qualified  grant,  or  to  regulate  the  manner  in  which  it 
Bhall  be  used  and  occupied.  So  lontr  as  he  retains  the  title  in  himself, 
his  covenants  and  agreements  respecting  the  use  and  enjoyment  of  hiii 
estate  will  be  binding  on  him  personally,  and  can  be  H|>ecillcally  enforced 
in  equity.  When  he  disposes  of  it  by  grant  or  otherwiBe,  those  who 
take  under  him  cannot  equitably  refuse-  to  fulfill  ftipnlatioiiH  roncerninj? 
the  premises  of  which  they  had  notice.     It  iu  uion  thia  ground  that 


§  990  C  CONDITIONS,    LIMITATIONS,    ETC.  136G 

in  deeds  prohibiting  the  erection  of  buiklings  beyond  a 
certain  height,  and  sucli  restrictions  are  valid.^ 

§  9J)0c.     Extension  of  room,  window,  or   piazza. — A 

restriction  prohibiting  the  erection  of  a  building  within 
a  specified  distance  of  a  line,  requires  that  no  part  of  the 
building  shall  project  beyond  such  line.^  For  instance, 
a  restriction  in  a  deed  declared  that  no  building  should  be 
erected  within  twenty  feet  of  a  certain  street.  The  grantee 
built  a  house  facing  that  street,  the  front  wall  of  which  was 
twenty  feet  distant  from  the  street;  but  a  part  of  the  roof 
sloping  toward  the  street  was  extended  to  a  line  about 
fourteen  feet  distant  from  the  street  covering  a  piazza,  and 
supported  by  posts  placed  six  feet  from  the  front  wall  of 
the  house,  and  in  this  part  of  the  house  tliere  was  also  a 
dormer  window  by  which  a  room  in  the  second  story  was 
extended  a  distance  of  three  feet  from  the  line  of  the 
front  wall  of  the  house.     It  was  decided  that  the  portion 

courts  of  equity  will  afford  relief  to  parties  asgrieved  by  the  neglect  or 
omission  to  comply  with  agreements  respecting  real  estate  after  it  has 
passed  by  mesne  conveyances  out  of  the  hands  of  those  who  were  parties 
to  the  original  contract.  A  purchaser  of  land,  with  notice  of  a  right  or 
interest  in  it  existing  only  by  agreement  with  his  vendor,  is  bound  to  do 
that  which  his  grantor  had  agreed  to  perform,  because  it  would  be  un- 
conscientious and  inequitable  for  him  to  violate  or  disregard  the  valid 
agreements  of  the  vendor  in  regard  to  the  estate,  of  which  he  had  notice 
when  he  became  the  purchaser.  In  such  cases,  it  is  true  that  the  ag- 
grieved party  can  often  have  no  remedy  at  law.  There  may  be  neither 
privity  of  estate,  nor  privity  of  contract,  between  himself  and  those  who 
attempt  to  appropriate  property  in  contravention  of  the  use  or  mode  of 
enjoyment  impressed  upon  it  by  the  agreement  of  their  grantor,  and  with 
notice  of  which  they  took  the  estatd  from  him.  But  it  is  none  the  less 
contrary  to  equity  that  those  to  wliom  the  estate  comes,  with  notice  of 
the  rights  of  another  respecting  it,  should  willfully  disregard  them,  and, 
in  the  absence  of  any  remedy  at  law,  the  stronger  is  the  necessity  for 
affording  in  such  cases  equitable  relief,  if  it  can  be  given  consistently 
with  public  policy,  and  without  violating  any  absolute  rule  of  law." 
See,  also,  Whiltenton  Mfg.  Co.  v.  Staples,  164  Mass.  320;  Whitney  v. 
Union  Railway  Co.,  11  Gray,  359;  71  Am.  Dec.  715. 

^  Keening  v.  Ayling,  126  Mass,  404;  Smith  v.  Bradley,  154  Mass.  227; 
Hobson  V.  Cartwright,  93  Ky.  368. 

^  Bagnall  v.  Da  vies,  140  Mass.  76;  Attorney  General  v.  Williams,  140 
Mass.  329 ;  54  Am.  Rep.  468 ;  Payson  v.  Burnham,  141  Mass.  547 ;  Man- 
ners V.  Johnson,  1  Ch.  Div.  673. 


1367  CONDITIONS,    LIMITATIONS,    ETC.  §  000  d 

of  the  roof  and  dormer  window  extending  beyond  tlie 
front  line  of  the  building  was  an  extension  of  the  buikl- 
ing,  and  prohibited  by  the  restriction  in  the  deed.*  So, 
in  another  case,  where  the  restriction  was:  "  No  building 
erected  on  said  premises  shall  be  placed  at  a  less  distance 
tlian  twenty  feet  from  the  said  easterly  line  of  Parsons 
street,"  and  the  front  line  of  the  main  body  of  the  house 
was  twenty  feet  from  the  street  but  attached  to  the  house, 
and  extending  along  the  entire  front  was  a  piazza,  about 
eight  feet  wide  and  having  a  roof  supported  by  posts,  it 
was  considered  that  the  whole  of  the  piazza  was  witliin  the 
terms  of  the  restriction.^ 

§  990  d.  Bay  windows. — Bay  windows  are  also  consid- 
ered as  parts  of  a  building.^  A  deed  contained  this  clause: 
"It  is  further  agreed  that  the  building  or  buildings  that 
shall  be  erected  on  the  said  lot  shall  be  of  brick  and  set 
the  same  distance  back  from  Tliird  street,  as  the  house 
now  erected  on  the  southwest  corner  of  Third  and  Oak 
streets,  and  shall  be  suitable  dwellings  for  the  neighbor- 
hood." The  court  construed  this  clause  as  requiri-ng 
that  the  front  wall  only  of  each  building  erected  on  the 
land  shouUl  be  equally  distant  from  the  street,  with  tho 
front  wall  of  the  house  then  standing  on  the  other  lot, 
and  as  not  intending  to  forbid  the  erection  or  to  pre- 
scribe  the  shape  or  dimension  of  any  porch,  stooj),  or 
platform  which  the  respective  owners  might  please  to 
build."  It  was  stipulated  in  a  deed  that  the  front  wall  of 
any  building  erected  on  the  land  conveyed  should  ho  set 
back  twenty  feet  from  the  avenue,  with  a  proviso  that 
"porticos    and  other   usual   projections"  a])purtenant   to 

^  Bagnall  v.  Davies,  140  Mass.  76. 

=•  Reardon  v.  Murphy,  16:5  Mass.  501.  The  court  m\<\  it  r>ml\  hco  no 
ground  for  a  distinction  between  a  piazza  covered  by  the  nuiiii  exIeuHion 
of  a  house  and  one  covered  by  its  uwii  roof  and  atlach<-.I  to  the  hoUHC. 
See,  also.  Smith  v.  Bradley,  154  Mass.  227;  Ogontz  Land  and  In.prove- 
ment  Co.  v.  Johnson,  168  I'a.  St.  178. 

»  Sanborn  v.  Kice,  129  Mass.  387;  Attorney  General  /'.  Williama,  140 
Mass.  329;  54  Am.  Kep.  468;  Payson  v.  Burnham,  141  Mass.  547. 

*  Graham  v.  Hite,  93  Ky.  474. 


§   991  CONDITIONS,    LIMITATIONS,    ETC.  1368 

tlie  wall  might  project  into  the  reserved  space,  subject  to 
these    limitations:    *' No    projection    of  any    kind    other 
than  doorsteps  and  balustrades   connected  therewith,  and 
also  cornices  at  the  roof  of  the  building,  will  be  allowed 
to  extend   more  than   five   feet  from   said  wall  into  said 
front    space.      No    projection    in    the    nature    of    a    bay- 
window,  circular  front,  or  octagon  front,  with  tlie  founda- 
tion wall  sustaining  the  same  ('SUch  foundation  wall  being 
a  projection  of  the  front  wall)  will  be  allowed,  unless  any 
horizontal  section  of  such   projection   would  fall  within 
the  external  lines    of  a  trapezoid,  whose  base   upon  tlie 
rear  line  of  the  aforesaid  space  does  not  exceed  seven- 
tenths  of  the    whole  front  of   the  building,   nor   exceed 
eighteen  feet  in  any  case,  and  whose  side  lines  make  an 
angle  of  forty-five  degrees  with  the  base;  and  each  house 
in  a  block  shall  be  considered  a  separate  building  within 
the  meaning  of  this  limitation."     The  court  decided  that 
the  basement  story  of  such  a  building  surmounted  by  a 
balcony  such  as  had  never  been  used  in  this  country  was 
not  a  "  usual  projection"  within  the  meaning  of  the  deed, 
and  also  that  each  of  several  bay  windows  of  the  build- 
ing must  fall  within  the  external  lines  of  a  trapezoid,  the 
])ase  of  which,  while  it  might  overlap  upon  a  portico  or 
balcony,  was  clear  of  that  of  the  adjoining  bay  window, 
and  did  not  extend  beyond  the  exterior  lines  of  the  build- 
ing, and   the   combined   bases  of  all  the  trapezoids  must 
not  exceed  seven-tenths  of  the  whole  front  of  the  build- 
ing.    A  mandatory  injunction  was  issued  for  the  removal 
of  such  projections  as  were  insisted  upon,  unless  so  slight 
as  to  come  within  the  rule  de  minimis.^ 

§  991.  Removal  of  restriction. — Where  a  restriction 
is  imposed  for  a  certain  purpose,  and  the  object  for  which 
the  restriction  was  made  is  afterward  abandoned,  the 
land  may  become  free  from  the  restriction.     Thus,  land 

1  Attorney  General  v.  Algonquin  Club,  153  Mass.  447.  See.  also,  aa 
to  the  construct. on  of  the  decree,  the  later  case  of  Attorney  General  v. 
Algonquin  Club,  155  Mass.  128.  See,  also.  Attorney  General  v.  Ayer, 
148  Mass.  584;  Linzee  v.  Mixer,  101  Mass.  512. 


]369 


COVENANTS,    LIMITATIONS,    ETC.  8  901 


lying  between  two  streets  in  a  city  was  divided  up  by  the 
corporation  owning  it  into  lots,  and  sold  at  auction. 
Among  the  terms  of  the  sale  was  the  provision  that  "  be- 
tween  the  lots  there  shall  be  a  railway  fourteen  feet  wide, 
to  be  for  the  common  benefit  of  all  the  lots  bounding  on 
it,  to  be  used  for  no  other  purpose  than  a  railway,  and  no 
building  is  ever  to  be  built  over  it."  By  the  deeds,  after- 
ward executed,  the  fee  to  the  middle  of  this  strip  of  hind 
was  conveyed,  with  the  easements,  and  subject  to  the  re- 
strictions named  in  the  terms  of  the  sale.  On  this  strip 
of  land  railway  tracks  were  afterward  laid,  but  subse- 
quently its  use  for  a  railway  ceased.  An  owner  of  one  of 
the  lots  commenced  a  suit  in  equity,  more  than  twenty 
years  after  the  abandonment  of  the  land  for  railway  pur- 
poses, to  compel  the  removal  of  a  structure  on  the  land  of 
the  defendant.  The  court  held,  however,  that,  as  to  the 
strip  of  land  reserved  for  a  railway,  the  defendant  might 
use  his  land  in  any  way  he  desired.  It  was  no  longer 
subject  to  the  restriction  that  no  building  should  be  erected 
on  it.^  Where  there  is  a  covenant  against  the  erection  of 
tenement  houses,  it  will  not  be  enforced  if  flats  and  tene- 
ment houses  have  already  been  erected  upon  the  larger 
portion  of  the  adjacent  lots.  Such  a  change  in  tiie 
neighborhood  defeats  the  object  of  the  covenant,  and  it 

'  Bangs  V.  Potter,  135  Mass.  245.  Said  Coburn,  J.,  in  dc'livcring  the 
opinion  of  the  court:  "  These  servitudes  and  easements  were  expressly 
limited  to  a  railway ;  and,  though  it  would  be  a  beneUt  to  eacli  lot  to  receive 
light  and  air  through  the  space  which  was  to  be  kept  open  for  tlie  raihyay, 
the  benefits  of  light  and  air  are  incidents  wliich  result  from  the  provisions 
for  a  railway,  and  are  not  provided  for  independiMitlyof  the  railway,  and 
no  servitude  is  imposed  or  easement  granted  for  any  |)nrpose  but  the  rad- 
way  ;  and ,  when  the  railway  was  abandoned,  all  servitu-les  and  easenuMits 
terminated,  and  each  owner  had  theriglit  tons.-  the  whole  of  his  lot  forany 
purpose  he  pleased,  u  Ithout  restraint  by  the  '  terms  of  sale"  or  provuioiia 
in  the  deeds:  Central  Wharf  v.  In.lia  Wharf,  12.5  .Nhis-H.  6U7.  What  ,)r.>- 
vision  the  corporation  wouM  have  made  for  the  use  of  this  strip  of 
land,  if  the  possibility  that  the  railway  might  be  aban.lon.-d  b.i<l  been 
considered,  it  is  useless  to  conjecture ;  it  did  not  provide  for  such  con- 
tingency, and  the  provisions  of  the  deeds  cannot  be  modilied  or  ex- 
tended, so  as  make  them  in  accordance  with  what  it  may  be  HupiH.s- I 
the  corporation  would  have  done  if  it  had  anticipated  the  oxmting  atato 
of  things." 


§    991  a  COVENANTS,    LIMITATIONS,    ETC.  1370 

would  be  contrary  to  the  principles  of  equity  to  deprive 
the  owner  of  making  a  profitable  use  of  his  property. 
Compensation,  however,  will  be  given  in  damages.^ 

§  991  a.  Reasonable  construction. — A  restriction  that 
a  building  shall  be  used  only  for  particular  purposes, 
or  that  it  may  be  used  for  any  purpose  except  those  spe- 
cified, must,  like  every  other  contract,  receive  a  reason- 
able construction.  It  was  contended  in  a  case  that  we  have 
already  cited,  where  the  use  of  a  lower  story  of  a  dwelling- 
house  as  a  grocery  was  prohibited,  that  such  restrictions 
are  viewed  with  disfavor,  and  are  not  to  be  extended  by 
implication  beyond  their  literal  interpretation,  and  that 
the  grantee  had  the  right  to  convert  his  dwelling,  when 
built,  into  a  place  of  business,  and  might  carry  it  on  if 
he  did  so  in  an  inoffensive  manner.  Mr.  Justice  Ames 
answered  this  contention  by  observing:  "But  this  mode 
of  dealing  with  the  condition  deprives  it  of  all  force  what- 
ever, and  seems  to  us  to  be  a  mere  evasion.  There  is 
nothing  in  the  condition  that  appears  to  be  unreasonable, 
or  contrary  to  the  policy  of  the  law;  and  there  is  no 
reason  for  doing  violence  to  the  language  in  which  it  is 
expressed,  or  perverting  its  true  meaning.  Some  kinds  of 
industry  might  be  carried  on  in  a  dwelling-house  without 
any  inconvenience  whatever  to  the  neighborhood.  The 
house  might  be  occupied  by  a  physician  or  a  lawyer,  per- 
haps by  a  chemist  or  photographer,  and  a  portion  of  it 
set  apart  as  an  office  or  place  of  business,  without  any 
offense  or  objection.  All  this  would  be  allowable  under 
the  deed.  But  to  change  a  dwelling-house  into  a  grocery, 
a  workshop,  or  a  market,  would  be  a  very  different  mat- 
ter. The  condition  cannot  be  construed  as  having  any 
other  meaning  than  to  prescribe  the  kind  of  a  building 
that  shall  be  erected,  and  the  manner  in  which  it  shall 
be  used  and  occupied.'"'  Where  a  deed  provides  that  the 
grantor  should  not  put  upon   the  premises   "any  build- 

»  Amerman  v.  Deane,  132  N.  Y.  355 ;  28  Am.  St.  Rep.  584. 
•  Dorr  V.  Harrahan,  101  Mass.  534;  3  Am.  Rep.  398. 


1371  COVENANTS,    LIMITATIONS,    ETC.  §  001  b 

ings,  timbers,  trees,  or  other  nuisances,"  the  term  "other 
nuisances"  will  not  include  excavcitions  unless  such  an 
intention  is  apparent  from  the  deed  as  a  whole/ 

§  991  b.  Public  policy. — A  restriction  in  a  deed  that 
the  land  conveyed  shall  be  used  for  residence  purposes 
only,  and  not  for  the  purpose  of  carrying  on  any  trad- 
ing or  mercantile  business  is  not  opposed  to  public  pol- 
icy.^ An  agreement  in  a  lease  that  the  premises  shall  be 
used  "strictly  as  a  private  dwelling,  and  not  for  any  public 
or  objectionable  purpose"  is  broken  if  the  premises  are 
allowed  to  be  used  as  a  boarding-house.^  Where  a  statute 
authorizes  the  sale  to  a  city  of  a  square,  and  provides  that 
"no  part  of  said  ground  lying  in  the  southward  of  the 
State-house  within  the  wall  as  it  is  now  built,  be  made 
use  of  for  erecting  any  sort  of  buildings  thereon,  but  that 
the  same  shall  be  and  remain  a  public  green  and  walk 
forever,"  the  restriction  is  not  violated  by  the  erection 
of  a  monument  consisting  of  a  statue  upon  a  pedestal.'' 
A  restriction  in  a  deed  that  the  lots  conveyed  shall  not 
"be  used  for  purposes  other  than  a  dwelling-house,  otiice, 
privy,  coach-house  or  stable,  the  restriction  to  cease  only 
when  the  lot  should  be  built  on  according  to  the  spirit  of 
the  agreement,"  will  prohibit  the  erection  of  a  church.* 

1  Cross  V.  Frost,  64  Vt.  179.  Said  Mr.  Justice  Mimson:  "It  is  a  gen- 
eral rule  that  when  words  of  particular  designation  are  followed  by  an 
expression  of  general  import,  the  latter  can  be  held  to  include  only 
things  similar  in  character  to  those  specially  named:  Braiiierd  r.  i'ei-k, 
34  Vt.  496;  Parks  Administrator  v.  American  Home  etc.  Soc.,  62  Vt.  19; 
Re  Barre  Water  Co.,  62  Vt.  27.  If  this  rule  governs  the  construction  of 
the  clause  quoted,  the  phrase  'other  nuisances'  cannot  be  ma.lo  to  in- 
clude a  lowering  of  the  surface,  for  the  things  namcl  are  only  audi  iia 
are  placed  upon  and  raised  above  the  surface.  Wo  think  the  bco-hs  of 
the  phrase  must  be  restricted  in  accordance  with  this  rule,  unleaa  its  uso 
in  a  more  comprehensive  sense  is  apparent  from  the  instruuiL-nt  on  a 

whole." 

»  Morris  v.  Tuskaloosa  Mfir.  Co.,  83  Ala.  565;  3  So.  Rep.  689. 

»  Gannett  v.  Albree,  10.'.  Mass.  372. 

*  Society  of  Cincinnati's  Appeal.  154  Pa.  St.  621 ;  26  Atl.  Rop.  r,47. 

»  St.  Andrew's  Church  Appeal,  67  I'a.  St.  512.  It  wan  said  bv  Mr. 
Justice  Sharswood  in  delivering  the  opinion  of  the  court:  "It  is  not  dia- 


§  991  C  COVENANTS,    LIMITATIONS,    ETC.  1372 

§  991c.  Chang-ed  conditions  of  city. — Where  a  re- 
trictiou  is  intended  to  make  the  locality  suitable  for  a  cer- 
tain purpose,  as  for  instance,  for  residences,  and  the 
growth  of  the  city  or  other  conditions  not  resulting  from 
a  breach  of  the  covenant  show  that  the  purpose  can  no 
longer  be  accomplished,  it  would  be  inequitable  to  enforce 

puted  that  the  covenant  upon  which  the  injunction  was  prayed  ran  with 
the  laud,  and  was  binding  upon  the  defendants;  nor  has  it  been  pre- 
tended that  a  court  of  equity  is  not  bound  according  to  well-established 
principles  and  precedents  to  enforce  the  specific  performance  of  such  a 
covenant,  by  restraining  its  breach,  unless  some  good  ground  can  be 
shown  to  the  contrary.  "It  has  been  argued,  but  not  much  pressed,  that 
the  edifice  proposed  to  be  erected  by  the  defendants,  if  against  the  letter, 
is  not  against  the  spirit  of  the  covenant.  It  is  urged  that  it  was  aimed 
at  preventing  what  might  be  a  nuisance  or  annoyance  to  the  owners  of 
other  dwelling-houses  on  the  square,  and  that  a  church  in  no  sense 
would  be  such.  It  is  enough  to  say,  in  answer  to  this  suggestion, 
that  by  confiining  the  erection  of  buildings  to  private  dwelling-houses, 
offices,  privies,  or  necessary  houses,  coach-houses,  or  stables,  it  was  evi- 
dently intended  to  prohibit  any  buildings  of  public  resort,  such  as  a 
hotel,  circus,  menagerie,  theater,  or  other  similar  establishment;  and  if 
the  plaintiff  cannot  prevent  a  church  from  being  built  in  the  first  in- 
stance, he  certainly  could  not  afterward  prevent  it  from  being  used  for 
any  other  purpose.  The  covenant  is  directed  against  the  building  alone, 
not  the  subsequent  use,  and  when  a  building  is  lawfully  erected  on 
either  of  the  lots,  so  far  as  that  building  is  concerned,  the  covenant  is  at 
an  end.  There  would  be  nowhere  any  power  to  restrain  its  application 
to  any  purpose  not  a  nuisance  in  itself.  To  protect  himself,  therefore, 
from  such  a  consequence,  it  was  the  clear  right  of  the  plaintiff  to  stand 
upon  the  covenant,  even  though  the  erection  of  a  church  might  not 
prove  of  any  actual  inconvenience  or  annoyance  to  him  so  long  as  it  was 
only  used  as  a  church.  "It  is  plain,  too,  that  in  such  a  case  the  amount 
of  damage  which  the  plaintiff  may  be  likely  to  suffer  from  the  threatened 
breach,  ought  not  to  enter  as  an  element  in  the  determination.  In  this 
respect  there  is  a  manifest  distinction  between  cases  depending  on  nui- 
sance and  on  contract :  Attorney  General  v.  The  Railway  Companies, 
Law  Rep.  3  Oh.  App.  99;  Hills  v.  Miller,  3  Paige,  254;  24  Am.  Dec.  218. 
Indeed,  the  fact  that  a  jury  would  not  give  probably  any  more  than 
nominal  damages,  is  a  circumstance  which  appeals  most  strongly  to  the 
conscience  of  the  chancellor  to  stretch  forth  the  strong  arm  of  the  court 
for  the  plaintiff's  relief.  It  is  his  only  adequate  remedy  for  the  viola- 
tion of  a  clear  and  indubitable  right."  See,  also,  where  the  use  of  a 
building  for  charitable  purposes  has  been  held  to  be  a  violation  of  a 
restriction,  German  v.  Chapman,  7  Ch.  D.  271 ;  Rolls  v.  Miller,  25  Oh, 
D.  206;  27  Ch.  D.  71;  Bramwell  v.  Lacy,  10  Oh.  D.  691;  Winnipesaukee 
Camp  Meeting  Assn.  v.  Gordon,  63  N.  H.  505. 


1373  COVENANTS,    LIMITATIONS,    ETC.  §  '.MJl  c 

it,  and  hence  its  violation  cannot  be  enjoined  in  equitv.' 
Thus,  where  a  covenant  was  made  that  only  dwelling- 
houses  should  be  erected  on  the  land,  and  that  no  kind  of 
manufactory,  trade,  or  business  should  be  conducted  or 
suffered  on  the  premises,  but  subsequently,  the  advance  of 
business,  and  the  operation  of  an  elevated  railroad  through 
the  street,  caused  the  value  of  the  property  for  any  pur- 
pose except  commercial  to  become  greatly  lessened,  it  was 
decided  that  owing  to  the  changed  conditions,  the  restric- 
tion would  not  be  enforced  against  a  subsequent  pur- 
chaser.^ In  a  similar  case  Mr.  Justice  Barker  observed: 
"  If  all  the  restrictions  imposed  in  the  deeds  should  be 
rigidly  enforced,  it  would  not  restore  to  the  locality  its 
residential  character,  but  would  merely  lessen  the  value 
of  every  lot  for  business  purposes.  It  would  be  oppres- 
sive and  inequitable  to  give  effect  to  the  restrictions;  and 
since  the  changed  condition  of  the  locality  has  resulted 
from  other  causes  than  their  breach,  to  enforce  them  in 
this  instance  could  have  no  other  effect  than  to  harass 
and  injure  the  defendant,  without  effecting  the   purpose 

^  Trustees  of  Columbia  College  v.  Thacher,  87  N.  Y.  311 ;  41  Am  Rep. 
S65;  Jackson  v.  Stevenson,  156  Mass.  496;  32  Am.  Kt.  Rep.  476;St;irkie  v. 
Richmond,  155  Mass.  188;  Duke  of  Belford  v.  Britisli  Museum,  2  Mylno 
&  K.  552;  Sayers  v.  CoUyer,  24  Ch.  Div.  180;  German  v.  Chapman,  7  Ch* 
Div.  271. 

»  Trustees  of  Columbia  College  v.  Thacher,  87  N.  Y.  311 ;  41  Am.  Rep- 
365.  Said  Danforth,  J.,  delivering  the  opinion  of  the  court:  "It  is  true, 
the  covenant  is  without  exception  or  limitation,  but  I  think  this  con- 
tingency which  has  happened  was  not  within  the  contemplation  of  the 
parties.  The  road  was  authorized  by  the  legislature,  and  by  reason  of  it 
there  has  been  imposed  upon  the  property  a  co'iditloii  of  thin^M  whicli 
frustrates  the  scheme  devised  by  the  particH,  and  deprives  the  projxTty 
of  the  benefit  which  might  otherwise  accrue  from  its  ol)Hi'rvunco.  Thia 
new  condition  has  already  affected  in  various  ways  and  degrofs  the  usoh 
of  property  in  its  neighborhood,  and  property  values.  It  han  niad»<  tho 
defendant's  property  unsuital)le  for  the  use  to  which,  hy  tlie  covenant  of 
his  grantor,  it  was  appropriated,  and,  if  in  face  of  ilH  enactment  and  tho 
contingencies  flowing  froiii  it,  the  covenant  can  stand  anywlicro,  it  Hiirdv 
cannot  in  a  court  of  equity.  The  land  in  question  furniHhuH  an  ill  nito 
for  dwelling-houses,  and  it  cannot  be  supposed  that  tho  parties  in  the 
covenant  would  now  select  it  for  a  residence,  or  exjject  othera  to  prefer  it 
for  that  purpose."    , 


§  991  C  COVENANTS,    LIMITATIONS.    ETC.  1374 

for  which  the  restrictions  were  originally  made."^  But 
the  party  may  be  entitled  to  some  damages,  and  is  enti- 
tled to  have  the  bill  retained  for  the  purpose  of  assessing 
them.'' 

>  In  Jackson  v.  Stevenson,  156  Mass.  496;  32  Am.  St.  Rep.  476. 
«  Jackson  v.  Stevenson,  156.Mass.  496;  32  Am.  St.  Rep.  476. 


CHAPTER  XXVIII. 

RECITALS. 

§     992.  Kinds  of  recitals, 

§    993.  Recital  that  grantee  is  a  beneficiary. 

§    994.  Recital  as  surplusage. 

§     995.  History  of  title. 

§     99G.  Stranger   to   title. 

§     997,  Parties   bound  by  recitals, 

§     998.  Recognition  of  title  in  another, 

§     999.  General  recitals. 

§  1000.  Notice  from  recitals. 

§  1001.  Illustrations. 

§  1002.  Failure  to  read  recitals. 

§  1003.  Recitals  in  patents. 

§  1004.  Presum"ti<.n  oi  s;itisfaction  of  vendor's  lien. 

§  1005.  Indefinite  description. 

§  1006.  Collateral  circumstances. 

§  1007.  Notice  of  trust  in  favor  of  grantee. 

§  1008.  Bond  for  deed, 

§  1009.  Recital  of  nominal  consideration  as  evidence  of  fraud  of 

trustee. 

§  992.  Kinds  of  recitals.— Recitals  are  introflncefl  for 
the  purpose  of  explaining  why  the  deed  is  execute. 1,  or  of 
showing  circumstances  which  preserve  the  connection  in 
the  chain  of  title,  and  are  considered  as  being  of  two 
kinds,  particular  and  general.  Particuhir  recitals  aro 
conclusive  evidence  of  the  facts  recited  in  actions  in  which 
the  purpose  of  the  deed  is  directly  involved.'  But  if  tl.o 
deed  is  merely  collateral  to  the  purposes  of  tlio  action, 
the  recitals  are  hut  prima  facie  evidence  of  the  fncts  re- 
cited.''  Where  a  married  woman  and  her  hnsLnnd  exe- 
cute a  deed  of  trust  of  her  separate  estate,  a  recital  in  Mich 

>  Mix  ..  People,  86  III.  329;  George  v.  T^iflrhnff.  68  111.  230;  UHina  v. 
Wilder,  58  Ga.  178;  Pinrkard  v.  Milrnino,  76  ill.  463. 
»  Carpenter  v.  Lulier,  8  Meea.  &  W,  209. 


§  993  RECITALS.  1376 

deed  that  it  is  made  to  secure  her  indebtedness,  evidenced 
by  her  and  his  notes,  does  not  preclude  her  in  an  action 
on  the  notes  with  a  prayer  for  judgment  against  iier  sep- 
arate estate,  from  showing  tliat  such  notes  were  given  for 
supplies  furnished  for  a  plantation  cultivated  in  her  hus- 
band's name  and  for  his  benefit.^  But  parties  are  not  es- 
topped from  contradicting  general  recitals  lacking  the 
element  of  certainty.^  A  restriction  upon  the  absolute 
title  is  not  imposed  by  a  recital  in  a  grant  from  the  State, 
that  it  is  made  for  commercial  purposes  only.^ 

§  993.  Recital  that  grantee  is  a  beneficiary. — Where 
a  trustee  executes  a  deed  reciting  that  the  grantee  is  one 
of  the  beneficiaries  to  whom  the  trustee  was  required  to 

'  Bank  of  America  v.  Banks,  101  U.  S.  240.  See,  also.  Young  v.  Rain- 
cock,  7  Com.  B.  olO;  Southieastern  Ry.  Co.  v.  Wliarton,  6  Hurl.  &  N. 
520;  Stroughill  v.  Buck,  14  Q.  B.  781;  Fraser  v.  Pendlebury,  31  Law  J. 
Com.  P.  1 ;  Carter  v.  Carter,  3  Kay  &  J.  617.  In  Bank  of  America  v. 
Banks,  101  U.  S.  247,  Mr.  Justice  Clifford,  in  delivering  the  opinion  of 
the  court,  said :  "Facts  recited  in  an  instrument  may  be  controverted 
by  the  other  party  in  an  action  not  founded  on  the  same  instrument, 
but  wholly  collateral  to  it.  Recitals  of  the  kind  may  be  evidence  for  the 
party  instituting  the  suit,  but  they  are  not  conclusive:  Carpenter  v. 
BuUer,  8  Mees.  &  W.  209,  213;  Herman  on  Estoppel,  §  238;  Lowell  v. 
Daniels,  2  Gray,  161,  169;  61  Am.  Dec.  448;  Chaplain  v.  Valentine,  19 
Barb.  485,  488.  In  order  to  work  an  estoppel,  the  parties  to  a  deed  must 
be  sui  juris  competent  to  make  it  effectual  as  a  contract.  Hence  a  mar- 
ried woman  is  not  estopped  by  her  covenants.  Plainly  the  wife  was  not 
competent  to  purchase  supplies  for  the  plantation  of  her  husband,  and 
therefore  cannot  be  estopped  by  these  recitals :  Bigelow  on  Estoppel, 
276;  Jackson  v.  Vanderheyden,  17  Jolins.  167;  8  Am.  Dec.  378." 

2  Jackson  v.  Allen,  120  Mass.  64;  Right  v.  Bucknell,  2  Barn.  &  Adol. 
278;  Lainsont).  Tremere,  1  Ad.  &  E.  792;  Kepp  v.  VViggett,  lO^Com.  B. 
35;  Salter  v.  Kidley,  1  Show.  59.  Where  the  consideration  is  a  sum  in 
cash,  and  the  balance,  by  the  assuming  on  the  part  of  the  said  grantees, 
the  payment  of  a  certain  mortgage,"  existing  upon  the  property  as 
security  for  the  grantor's  note,  this  recital,  in  the  absence  of  evidence  of 
a  contrary  intention,  shows  an  agreement  on  the  grantee's  part  to  pay 
the  mortgage  debt,  and  not  simply  to  secure  a  discharge  of  the  mortgage 
lien  upon  the  land :  Lewis  v.  Covillaud,  21  Cal.  178. 

*  Abbott  V  Curran,  98  N.  Y.  665.  While  a  party  claiming  under  a 
deed  is  estopped  from  denying  any  of  the  material  recitals  in  it,  this  rule 
does  not  apply  to  those  claiming  adversely,  or  by  title  acquired  prior  to 
the  execution  of  the  deed :  Cobb  v.  Oldfield,  151  111.  540 ;  42  Am.  St. 
Rep.  263. 


1377  RECITALS.  §§994,995 

convey  under  the  terms  of  the  trust,  such  recital,  in  a  suit 
in  ejectment  by  the  grantee  against  one  who  does  not 
himself  claim  to  be  a  beneficiary,  is  sufficient  evidence  of 
the  facts  recited.  Thus,  where  the  title  to  lands  witiiin 
the  limits  of  a  city  is  held  by  the  city  as  a  trustee  for  tlie 
parties  in  possession,  to  be  conveyed  to  them  upon  com- 
pliance with  certain  conditions,  a  party  who  has  no  claim 
to  the  land  cannot  raise  the  question  whether  the  grantee 
in  a  deed  executed  by  the  city  authorities  was  a  benefi- 
ciary, and  as  such  entitled  to  a  deed.' 

§  994.  Recital  as  surplusage. — Uecitals  are  to  be  con- 
strued as  are  other  parts  of  the  deed.  In  endeavoring  to 
ascertain  and  effectuate  the  intention  of  the  parties,  courts 
may  transpose  clauses  or  strike  them  out  altogether.  In 
applying  this  familiar  principle  to  recitals,  we  may  select 
a  case  which  we  have  had  occasion  to  cite  before  as  estab- 
lishing the  principle  that  a  void  deed  is  incapable  of  con- 
firmation.^ In  this  case  a  deed  being  void,  a  recital  in  a 
second  deed  that  it  was  executed  to  confirm  the  former 
deed,  the  court  declared,  might  be  treated  as  surplusage. 
Consequently  the  second  deed,  with  this  rejection,  if 
valid  in  other  respects,  would  be  sufficient  to  pass  the 
title.^ 

§  995.  History  of  title. — A  grantor  who  recites  a  his- 
tory of  his  title  in  his  deed  is  estopped  from  denying  it 
against  persons  who  have  acted  upon  the  faith  of  such 
representations.  A  grantor  who  recites  in  a  deed  of  war- 
ranty that  a  certain  tract  of  land  had  been  conveyed  to 

1  McCreery  v.  Sawyer,  52  Cal.  257;  McCreery  v.  Diianc,  52  Cal.  20:J. 
As  to  the  eff.-ct  of  the  recital  in  a  will  of  deeds  executed  by  the  grantor 
in  his  lifetime,  see  In  re  Hciydeiifeldt,  lOG  Oal.  4:54.  See,  alHo,  ()  liSS  ii, 
ante.  See,  also,  Soukup  v.  Union  Ins.  Co.,  84  Iowa,  448;  35  Am.  St. 
Rep.  317;  51  N.  W.  Rep.  167. 

»  See  vol.  ],  §  18. 

»  Barr  v.  Schroeder,  32  Cal.  609.  Said  Rhodes,  J.  (p.  618):  "  Strike 
out  of  the  deed  the  matters  in  respect  to  tlie  mistake,  an<l  the  conlir- 
mation  and  the  deed  still  remain  Hufficient  in  law  to  imss  the  title.  Those 
matters  must  be  disregarded  because  they  were  imposHible  of  accom- 
plishment in  that  mode.    The  deed  is  not  vitiated  by  their  preaencc." 

VKKUi,   \'0L.   II. —81 


§  996  RECITALS.  1378 

him,  is  not  permitted  to  deny  this  fact  in  a  suit  brought 
against  him  by  his  grantee,  or  a  purchaser  from  the 
grantee.^  But  as  between  the  original  parties  a  recital 
unnecessary  to  the  conveyance  will  not  operate  as  an  es- 
toppel.^ A  person  executing  a  deed  in  behalf  of  a  man- 
ufacturing company,  and  reciting  that  he  has  authority 
by  a  vote  of  the  company  to  execute  such  deed,  is  es- 
topped to  deny  that  he  had  such  authority.* 

§  998.  Stranger  to  title. — But  astranger  cannot  claim 
the  benefit  of  recitals  as  estoppels  against  a  party  to  the 
deed.  An  owner  of  land  sold  it  in  twenty-fourth  parts, 
and  some  of  the  grantees  subsequently  joined  with  him 
in  the  execution  of  a  mortgage  to  a  stranger  which  con- 
tained a  recital  that  the  former  owner  was  the  owner  of 
eleven  twenty-fourths.  After  the  execution  of  the  mort- 
gage, and  before  its  registration,  a  creditor  of  such  owner 
attacheii  the  land,  and  on  execution  bought  the  land. 
He  then  brought  an  action  of  ejectment  against  the  per- 
sons in  possession,  the  original  owner's  former  tenants, 
and  they  alleged,  in  defense,  that  such  original  owner  had 
no  title  when  the  attachment  was  served.  The  purchaser 
at  the  execution  sale  relied  on  the  recital  in  the  mortgage 
as  an  estoppel;  but  the  court  held  that  the  recital  could 
not  operate  as  an  estoppel  in  favor  of  the  purchaser  at 
execution  sale  and  against  the  defendants.*     Nor,  if  such 

1  Green  v.  Clark,  13  Vt.  158.     See  McCreery  v.  Daane,  52  Cal.  293. 
^  Osborn  v.  Endicott,  6  Cal.  149;  65  Am.  Dec.  498. 

*  Stow  V.  Wise,  7  Conn.  214;  18  Am.  Dec.  99.  And  see  Douglass  t). 
Scott,  5  Ohio,  195;  Clark  v.  Baker,  14  Cal.  612,  629;  76  Am.  Dec.  449; 
Van  Rensselaer  v.  Kearney,  11  How.  322;  Carver  v.  Jackson,  4  Peters,  1, 
85;  Penrose  v.  Griffin,  4  Binn.  231 ;  Goodtitle  v.  Bailey,  Cowp.  597;  Ben- 
eley  v.  Burdon,  2  Sim.  &  St.  524;  Marchant  v.  Errington,  8  Scotr,  210; 
Adams  v.  Lansing,  17  Cal.  629.  Recitals  in  a  deed  of  an  administrator 
of  the  steps  required  by  law  to  make  a  sale  are  prima  ^acie  evidence  of 
the  facts  recited:  Worthy  v.  Johnson,  8  Ga.  236;  52  Am.  Dec.  399;  Doe 
V.  Henderson,  4  Ga.  148;  48  Am,  Dec.  216. 

*  Sunderlin  v.  Struthers,  47  Pa.  St.  411.  The  court  said  that  it  was 
"an  unprecedented  extension  of  the  doctrine  of  equitable  estoi)pel,  to 
hold  that  a  man  is  bound  to  the  world  to  make  good  what  he  has  said  to 
anyone,  if  others  choose  to  rely  upon  it.  If  every  man  may  be  held 
liable,  not  only  to  parties  and  privies  to  hia  deed,  but  to  all  mankind,  to 


1379  RECITALS.  §  99g 

evidence  be  wanting,  can  the  title  be  established  by  show- 
ing  that  the  heirs  at  law  of  the  person  deceased  received 
the  consideration  money.'  Where  a  deed  contains  a  re- 
cital that  "  tlie  undersigned  are  owners  and  part  owners 
of  the  within-described  land,"  it  is  held  that  in  the  ab- 
sence of  words  of  limitation,  the  title  of  those  who  sign, 
although  all  do  not  sign,  is  conveyeil.^  In  an  action  of 
ejectment,  when  a  deed  executed  by  one  of  the  parties  to 
the  action,  but  to  which  the  other  party  is  an  entire 
stranger,  is  introduced  in  evidence  in  the  action,  any  re- 
citals contained  tv  it  can  be  used  only  as  simple  admis- 
sions made  by  the  party  who  executed  the  deed.'  Where 
a  deed  executed  by  one  tenant  in  common  to  a  stranger 
refers  to  certain  incidents  of  the  joint  estate,  the  other 
tenant  is  not  estopped  by  the  recital/  A  recital  in  a 
deed  that  the  grantors  are  the  widow  and  heirs  of  a  per- 
son who  has  a  record  title,  is  not  competent  evidence  of 
the  truth  of  the  matters  recited  against  a  stranger.'  If  it 
be  sought  to  establish  title  to  real  estate  derived  from 
one  deceased,  the  executor's  deed  alone  is  not  sutHcient. 
The  probate  of  the  will  and  lawful  proceedings  ending  in 
the  execution  of  the  deed  must  also  be  shown.  The  re- 
citals in  the  executor's  deed  are  not  competent  to  estab- 
li.sii  their  truth  as  against  persons  not  in  privity  with  the 
grantor.® 

make  good  every  introductory  recital  which  the  deed  contains,  it  bo- 
hooves  him  to  avoid  a. I  recitals,  and  be  careful  wliat  Hcrivencr  he  em- 
ploys. Sucli  is  not  the  law,  and  there  are  no  autliorities  winch  HHsert 
it."  See,  also,  Allen  v.  Allen,  45  Pa.  St.  46S,  t73;  Kol.bins  v.  McMiUuq 
26  Miss.  434;  Whilaker  v.  Garnett,  3  Bush,  402. 

»  Miller  «.  Miller,  63  Iowa,  387. 

"■  St.  Louis  V.  Wiggins'  Ferry  Co.,  15  Mo.  A  pp.  227.  As  to  recitnla  in 
a  deed  made  by  a  mortgagee  under  a  power  of  sale,  seoT.irtt  v.  Clayton, 
lOU  111.  579. 

»  Franklin  v.  Dorland,  28  Cal.  175;  87  Am.  Dec.  111.  See  hh  to  re- 
cital of  heirship,  Potter  v.  Wasliburn,  13  Vt.  5)8;  37  Am.   Dec.  615. 

*  Thomasuii  v.  Dayton,  40  Ohio  St.  63.  A  deed  recitiuK'  that  tlio 
grantor::;  are  the  heirs  oi  a  previous  owner  of  the  land,  is  not  Hiillieient 
evidence  as  against  a  stranger  of  the  death  of  the  nam.'d  nnrcHlor.  or 
that  the  grantors  are  in  fact  his  heirs:  Kelley  v.  McBiuiu,  42Kuu.764. 

^  Costello  V.  Burkt?,  63  Iowa,  361. 

«  Miller  v.  Miller,  63  Iowa,  387.  ' 


§  997  RECITALS.  1380 

§  997.  Parties  bound  by  recitals. — Where  it  appears 
from  the  deed  that  all  the  parties  intend  to  admit  certain 
facts  as  true,  a  recital  in  the  deed  of  such  facts  is  an  es- 
toppel upon  all.  If  the  recital  is  intended,  however,  to 
be  the  statement  of  but  one  party,  such  party  only  is  es- 
topped, and  what  the  intention  is,  is  to  be  gathered  from 
the  deed.^  If  the  language  of  the  recitals  indicates  that 
the  scrivener  did  not  have  the  deed  recited  before  him, 
and  such  recitals  refer  to  what  the  grantors  have  done,  or 
intend  to  do  among  themselves,  in  which  acts  the  gran- 
tees have  no  part  or  interest,  and  there  is  nothing  to 
show  that  the  grantees  had  any  knowledge  of  the  recited 
deed  except  as  recited,  the  recitals  will  be  considered  the 
statement  of  the  grantors  only.^  An  instrument  which 
purported  to  be  a  will,  recited  that  the  testator  had  al- 
ready distributed  to  his  sons  different  tracts  of  land,  and 
"which  lands  I  have  already  divided  amongst  my  sons  as 
a  donation  inter  vivos,  to  their  entire  satisfaction,  and 
which  donation  by  these  presents  I  do  hereby  ratify." 
The  court  held  that  the  heirs  of  the  person  executing 
such  instrument,  and  all  persons  claiming  under  them, 
were  estopped  by  these  recitals  from  asserting  that  a  title 
did  not  pass,  and  that  the  intention  of  the  instrument 
was  to  vest  a  title  immediately,  and  not  to  make  a  testa- 
mentary disposition,  and  that  by  these  recitals  the  sons 
took  title  by  way  of  ratification  of  the  previous  gift.^     But 

1  Bower  v.  McCormick,  23  Gratt.  310.  See  Stroughill  v.  Buck,  14  Q.  B. 
781;  Joeckel  v.  Easton,  11  Mo.  118;  47  Am.  Dec.  142;  Blackball  v.  Gib- 
son, 2  Law  Rec.  49;  Thompson  v.  Thompson,  19  Me.  235;  36  Am.  Dec. 
751 ;  Young  v.  Raincock,  7  Com.  B.  310;  Simson  v.  Eckstein,  22  Cal.  580. 

*  Bower  v.  McCormick,  23  Gratt.  310,  and  cases  cited ;  Borst  v.  Corey, 
16  Barb.  136.  See  Osborne  v.  Endicott,  6  Cal.  149 ;  65  Am.  Dec,  498.  An 
estoppel  binds  the  grantor  and  his  privies :  Rangely  v.  Spring,  28  Me. 
127;  Doe  v.  Howell,  1  Houst.  178;  Simson  v.  Eckstein,  22  Cal.  580;  Doe 
V.  Porter,  3  Ark.  18 ;  36  Am.  Dec.  448 ;  Carver  v.  Jackson,  4  Pet.  1 ; 
Kinsman  v.  Loomis,  11  Ohio,  475;  Byrne  v.  Morehouse,  22  111.  603; 
Pinckard  v.  Milmine,  76  111.  453;  West  v.  Pine,  4  Wash.  691 ;  Chautauqua 
County  Bank  v.  Risley,  4  Den.  480;  Jackson  v.  Parkhurst,  9  Wend.  209; 
Stoutimore  v.  Clark,  70  Mo.  471 ;  Hasenritter  v.  Kirchhoffer,  79  Mo.  239 ; 
Usina  v.  Wilder,  58  Ga,  178. 

^  Adams  v,  Lansing,  17  Cal.  629.    The  parties  and  their  privies  are 


13S1  RECITALS.  S  9^3 

where  a  deed  recites  that  "the  above  piece  of  h\nd  is 
covered  by  the  North  Branch  Canal  and  embankment," 
this  recital,  while  some  evidence  that  the  land  belonged 
to  the  State,  is  not  conclusive.^  If  a  creek  flows  through 
the  grantor's  land,  and  a  deed  recites  that  the  grantee  is 
about  to  divert  and  aj^propriate  its  waters,  and  grants  a 
right  of  way  to  conduct  the  water  over  the  grantor's  land, 
the  grantor  is  not  estopped  from  denying  the  right  of  the 
grantee  to  divert  the  water."  An  estoppel  must  be  cer- 
tain,  and  in  the  case  just  cited  there  was  no  direct  grant 
of  any  water  or  of  the  right  of  diversion.  As  the  court 
said:  "There  is  nothing  in  the  recital  that  is  inconsistent 
with  the  theory  that  the  defendant  had  acquired  the  right 
which  it  now  sets  up;  nor  is  tliere  anything  in  it  that  is 
inconsistent  with  the  theory  that  it  had  not  acquired,  but 
confidently  expected  to  acquire  it."  In  other  words,  an 
admission  that  a  person  has  a  right  to  divert  water  can- 
not be  founded  on  a  recital  that  he  is  about  to  divert  it.' 

§  998.  Recognition  of  title  in  another. — A  person  may 
be  estopped  from  asserting  title  in  himself  by  acts  recog- 
nizing title  in  another.  If  a  person  procures  an  order  of 
court  for  the  sale  of  land  on  the  assumption  that  the  land 
is  claimed  by  the  county,  and  in  the  order  of  sale  tiie  land 
is  described  as  land  "  formerly  owned  "  by  the  person  who 
procures  the  order,  he  is  estopped  from  denying  or  revok- 
ing this  recognition  of  title  when  a  third  person  lias  acted 
upon  it  by  a  purchase  of  the  land  from  the  county,  paid 
the  purchase  money,  and  erected  improvements.*     But  a 

bound  by  a  recital  in  a  mortgage  that  it  is  Rubject  to  a  prior  mortgage, 
and  is  given  to  secure  certain  notes:  Huscnritler  v.  Kirchhoffer,  79  Mo. 
239. 

'  Pennsylvania  &  New  York  Canal  Co.  v.  Billings,  94  Pa.  St.  -JO. 

'  Zimmler  v.  San  Luis  Water  Co.,  57  Cal.  221. 

»  See  Zimmler  v.  San  Luis  Water  Co.,  57  Cal.  221.  A  recitnl  in  a  con- 
veyance of  a  municif)al  corporation  of  factH  withont  the  nxiHtt-iii-c  of 
which  it  would  be  unauthorized,  is  evi<h-nce  of  the  factH  reciU-d,  and  no 
additional  evidence  is  required  in  eupF.ort  of  the  deed:  Gordon  v.  City  of 
San  Diego,  101  Cal.  522;  40  Am.  St.  Rep.  73. 

*  Stevenson  v.  Saline  County,  66  Mo.  425. 


§§  099, 1000  RECITALS.  •  1382 

grantor  executing  a  deed  confirming  a  former  one  to 
which  he  was  not  a  party,  does  not  adopt  the  recitals  of 
the  former  deed  so  as  to  be  estopped  by  them,  unless  lan- 
guage showing  this  intention  is  used.^ 

§  999.  General  recitals. — In  order  that  a  recital  may 
have  the  effect  of  an  estoppel,  it  is  essential  that  it  be  cer- 
tain. Hence,  as  the  element  of  certainty  is  lacking  in 
general  recitals,  they  do  not,  as  a  general  proposition, 
estop  the  parties  from  denying  the  truth  of  the  matters 
recited.^  An  estoppel  does  not  result  from  statements 
which  are  immaterial  to  the  objects  of  the  deed.  Thus, 
where  a  lot  is  excepted  out  of  the  land  described  in  the 
deed,  and  the  clause  containing  the  exception  states  that 
such  lot  "remains  vested"  in  the  grantor,  the  grantee  is 
not  estopped  from  asserting  title  subsequently  acquired 
to  the  excepted  piece  through  a  source  hostile  to  the 
grantor's  title.^  A  recital  that  one  of  the  grantors  is  a 
feme  covert  does  not  estop  either  party  from  showing 
that  she  was  o.  feme  sole  at  the  time  of  the  execution  of 
the  deed.* 

§  lOOO.  Notice  from  recitals. — It  is  a  familiar  prin- 
ciple that  every  person  taking  a  deed  is  charged  with  no- 
tice of  all  recitals  contained  in  the  instruments  making 
his  chain  of  title.  "The  principle  of  equity  is  well  estab- 
lished that  a  purchaser  of  land  is  chargeable  with  notice, 
by  implication,  of  every  fact  affecting  the  title  which 
would  be  discovered  by  an  examination  of  the  deeds,  or 
other  muniments  of  title  of  his  vendor,  and  of  every  fact 
as  to  which  the  purchaser,  with  reasonable  prudence  or 
diligence,  ought  to  become  acquainted.     If  there  is  suffi- 

1  Doe  dem.  Shelton  v.  Shelton,  3  Ad.  &  E.  265.  The  parties  may  be 
estopped  by  recitals  showing  that  the  land  conveyed  was  the  grantor's 
homestead  :  Williams  v.  Swetland,  10  Iowa,  51. 

*  Doe  dem.  Butcher  v.  Musgrave,  1  Man.  &  G.  615;  Right  v.  Buckner, 
2  Barn.  &  Adol.  278;  Naglee  v.  IngersoU,  7  Pa.  St.  185;  Right  v.  Buck- 
nell,  2  Barn.  &  Adol.  278.     And  see  Farrar  v.  Cooper,  34  Me.  394. 

»  Champlain  &  St.  Lawrence  R.  R.  Co.  v.  Valentine,  19  Barb.  484. 

*  Brinegar  v.  Chaffin,  3  Dev.  108 ;  22  Am.  Dec.  711. 


1383  RECITALS.  g  1000 

cient  contained  in  any  deed  or  record,  which  a  prudent 
purchaser  ought  to  examine,  to  induce  an  inquiry  in  the 
mind  of  an  intelligent  person,  he  is  chargeable  with 
knowledge  or  notice  of  the  facts  so  contained."'  Thus, 
where  the  deed  under  which  a  mortgagor  holds  refers  to 
a  prior  unrecorded  mortgage,  a  second  mortgagee  will 
take  subject  to  the  first.^  The  same  principle  applies 
where  a  person  sells  a  tract  of  land,  and  does  not  take  a 

1  Cambridge  Valley  Bank  v.  Delano,  48  N.  Y.  329,  336;  Sergeant  r. 
Ingersoll,  15  Pa.  St.  343;  AVillis  v.  Gay,  48  Tex.  463;  26  Am.  Rep.  328; 
Sitdham  v.  Matthews,  29  Ark.  650;  Wood  v.  Krebbs,  30  Gratt.  70S ;  Baker 
V.  Mather,  25  Mich.  51;  Pringle  v.  Dunn,  37  Wis.  449;  19  Am.  Rep.  772; 
Sigourney  v.  Munn,  7  Conn.  324 ;  Major  v.  Buckley,  51  Mo.  227 ;  Rafforty 
V.  Mallory,  3  Biss.  362,  309;  Burrus  v.  Roulhac's  Administrator,  2  Bush, 
39;  Corbitt  v.  Clenny,  52  Ala.  480;  Phillips  v.  Porter,  3  Ark.  18;  36  Am. 
Dec.  448;  Payne  v.  Abercrombie,  10  Heisk.  161;  Deason  v.  Taylor,  53 
Miss.  697;  Blaisdell  v.  Stevens,  16  Vt.  179;  White  v.  Foster,  102  Mass. 
375,  380;  Burwell's  Executors  v.  Fauber,  21  Gratt.  446;  Johnson  v. 
Thweatt,  18  Ala.  741;  French  v.  Loyal  Company,  5  Leigh,  627;  United 
States  Mortgage  Co.  v.  Gross,  93  111.  483;  Foster  v.  Strong,  5  Bradw.  (111.) 
223;  Wallace  Gress  v.  Evans,  1  Dak.  Ty.  387;  Wiseman  v.  Hutchinson, 
20  Ind.  40 ;  Parke  v.  Neeley,  90  Pa.  St.  52.  See,  also,  Bogga  v.  Varner, 
6  Watts  &  S.  469;  Honorc's  Executor  v.  Blackwell,  6  Mon.  B.  67;  43 
Am.  Dec.  147;  Reeves  v.  Vinacke,  1  McCrary,  213;  Moore  v.  Bennett,  2 
Ch.  Cas,  Ch.  246;  Greenaeld  v.  Edwards,  5  De  Gex,  J.  &  S.  5S2;  Robson 
V.  Flight,  4  De  Gex,  J.  &  S.  608;  Bacon  v.  Bacon,  Toth.  133;  Moore  r. 
Bennett,  2  Ch.  Cas.  Ch,  246;  ^tna  Life  Ins.  Co.  v.  Ford,  89  III.  252; 
McConnell  v.  Reed,  4  Scam.  202;  Frye  v.  Partridge,  82  111.  267.  270; 
Rupert  V.  Mark,  15  III.  540;  Morrison  v.  Kelly,  22  111.  610;  74  Am.  Dec. 
169;  Chicago  etc.  R.  R.  v.  Kennedy,  70  111.  350,  362;  .Merrick  v.  Wallace, 
19  111.486;  Morris  v.  Hosile,  37  III.  150;  87  Am.  Dec.  243;  Cn.skey  w. 
Chapman,  26  Ind.  333;  Allen  v.  Poole,  54  Miss.  323;  Jolni.stoii  t;.  Gwath- 
mey,  4  Litt.  317;  14  Am.  Dec.  135;  Dudley  v.  Witter,  46  Ala.66»;  Greon 
V.  Early,  39  Md.  223;  Ridgeway  v.  Holliday,  59  Mo.  444;  FroHt  v.  Meek- 
man,  1  Johns.  Ch.  288;  Cami)bell  v.  Roach,  45  Ala.  667;  lUirch  v.  Car- 
ter, 44  Ala.  115;  Case?;.  Erwin,  18  Mich.  434;  Baker  t;.  Mallier,  25  Mich. 
51;  Brush  v.  Ware,  15  Peters,  93;  Clements  v.  Wells,  Law  R.  1  P>|.  200; 
Pilcher  v.  Rawlins,  Law  R.  11  Eq.  53;  Davies  v.  Thomas,  2  Younge  &  0. 
234;  Murrell  v.  Watson,  1  Tenn.  Ch.  342;  Acer  d.  WeHtcott,  1  Liins.  193; 
Christmas  v.  Mitchell,  3  Ired.  Eq.  535;  MalpaH  v.  Acklan.l.  3  Kuhh.  27.3; 
Casey  v.  Inloes,  1  Gill,  430;  39  Am.  Dec.  658;  Kerr  v.  Kit<-hen,  17  Pii.  Ht. 
433;  L.ngt;.  Weller's  Executors,  29  Gratt.  347,  3.53;  Pruden  v.  Aldcn, 
23  Pick.  Ih4;  34  Am.  Dec.  51 ;  Fitzhugh  v.  Barnard,  12  Midi.  105;  Dean 
V.  Long,  122  111.  447;  14  N.  E.  liep.  34;  Smith  v.  Lowry,  113  Ind.  37;  15 
N.  E.  Rep.  17;  Wait  v.  Baldwin,  GO  Mich.  622;  1  Am.  St.  Hep.  551  ;  27 
n'.  W.  Rep.  697;  Whitlock  t'.  Johnson.  87  Va.  .323;  12  S.  E.  K<-p.  614. 
>  Buchanan  v.  Balkum,  60  N.  H.  406;  Fifield  i;.  Elmer,  25  Mich.  51. 


§  1001  RECITALS.  1384 

mortgage  for  the  purchase  money,  but  recites  in  his  deed 
the  terms  of  the  sale,  and  describes  the  notes  which  lie 
has  taken  for  the  unpaid  purchase  money.  A  purchaser 
before  the  maturity  of  the  notes  has  notice  of  the  ven- 
dor's lien,  by  reason  of  the  recitals  in  the  deed.^  An 
owner  of  land  executed  a  mortgage,  and  three  years  after 
its  execution  the  mortgage  was  foreclosed,  and  the  prem- 
ises conveyed  to  the  mortgagee.  The  deed  to  the  mort- 
gage was  not,  however,  recorded  in  the  proper  county. 
Some  time  afterward,  the  original  mortgagee  to  whom 
the  deed  was  made,  as  stated,  transferred  the  land  by  deed, 
which  was  properly  recorded.  Twenty-four  years  after 
the  execution  of  the  mortgage,  the  mortgagor  made  a  deed 
of  the  same  property  subject  to  the  mortgage,  and  de- 
scribed it  as  given  in  "1830  or  1831."  It  was  held,  very 
properly,  that  the  grantee  had  notice  of  the  mortgage,  and 
of  the  fact  that  it  was  unpaid,  and  he  had  every  reason  to 
believe  after  the  lapse  of  the  long  period  of  twenty-four 
years,  that  it  had  been  foreclosed.  Consequently  the 
grantee  took  subject  to  the  mortgage,  and  to  all  the  rights 
which  had  accrued  under  it.^  So  where  there  are  two 
joint  owners  of  land,  a  purchaser  from  one  is  chargeable 
with  notice  of  the  interest  of  the  other,  when  it  appears  by 
the  deed  to  which  he  must  look  for  his  vendor's  title.^ 

§  1001.  lUvistrations. — A  person  conveyed  a  piece  of 
land  to  a  trustee  in  trust  to  secure  the  payment  of,  first,  a 
debt  due  to  one  creditor,  and  secondly,  a  debt  due  to  an- 

'  Croskey  v.  Chapman,  26  Ind.  333.  So  the  recital  of  a  consideration 
may  show  that  a  land  company  has  sold  land  in  violation  of  its  charter : 
Franco  Land  Co.  v.  McCormick,  85  Tex.  416;  34  Am.  St.  Rep.  815.  See 
§  710,  ante. 

'  Fitzhugh  V.  Barnard,  12  Mich.  104. 

^  Campbell  v.  Roach,  45  Ala.  667.  A  recital,  to  convey  notice,  must 
be  in  the  chain  of  title:  Hazlett  i;.  Sinclair,  76  Ind.  488;  40  Am.  Rep. 
254;  Mason  v.  Black,  87  Mo.  329;  Knox  Co.  v.  Brown,  103  Mo.  223;  15 
S.  W.  Rep.  382;  Boggs  v.  Varner,  6  W.  &  S.  469;  Coleman  v.  Barklew, 
27  N.  J.  L.  357 ;  Polk  v.  Cosgrove,  4  Biss.  437 ;  Mueller  v.  Engeln.  12  Bush, 
441;  Burke  v.  Beveridge,  15  Minn.  205;  Digman  v.  McOollum,  47  Mo. 
372;  Tydings  v.  Pitcher,  82  Mo.  379;  Corbin  v.  Sullivan,  47  Ind.  356;  40 
Am.  Rep.  254;  Bellas  v.  Lloyd,  2  Watts,  401. 


1385 


RECITALS.  §1001 


other  creditor.  The  latter  required  the  trustee  to  sell  the 
land,  and  the  owner  began  a  suit  to  enjoin  the  sale,  mak- 
ing the  trustee  and  such  second  creditor  parties,  and 
with  his  bill  filed  the  deed  as  an  exhibit.  In  the  decree, 
the  trustee  was  appointed  a  special  commissioner  to  sell 
the  land,  and  when  the  land  was  sold  such  second  cred- 
itor became  the  purchaser.  The  sale  was  confirmed  and 
approved,  and  the  court  directed  the  trustee  to  convey  the 
land  to  such  second  purchaser,  and  to  take  a  deed  of  trust 
upon  it  to  secure  the  purchase  money.  In  accordance 
with  this  direction  the  trustee  conveyed  the  land  to  such 
second  creditor,  and  in  his  conveyance  referred  to  it  as 
the  land  mentioned  in  the  bill.  When  the  trustee  came 
to  take  the  deed  of  trust,  as  directed,  instead  of  taking  it 
upon  this  land,  he  took  it  upon  another  tract  of  such 
second  creditor  which  was  encumbered  with  other  liens. 
Some  eight  years  afterward  such  second  creditor  conveyed 
the  land  by  deed,  the  deed  referring  to  it  as  the  land  pur- 
chased under  the  decree.  Subsequently  the  assignee  of 
the  first  creditor  filed  a  bill  against  the  last  purchaser  to 
enforce  the  lien  of  the  original  deed  of  trust.  The  pur- 
chaser claimed  that  he  was  a  bona  fide  purchaser  without 
notice.  At  the  time  when  he  purchased,  war  was  being 
carried  on  in  the  State,  and  he  alleged  that  as  he  lived 
some  distance  from  the  courthouse,  which,  by  reason 
of  the  war,  was  difficult  of  access,  he  refused  to  pur- 
chase unless  his  grantor,  the  second  creditor,  wouhl 
bring  a  certificate  of  the  clerk  of  the  court  that  the 
land  was  free  from  all  liens  and  encumhraiices;  and 
that  the  clerk,  after  an  examination  of  the  rcrords  of 
his  office,  gave  a  certificate,  that,  so  far  as  shown  by 
the  records  of  his  office,  no  lion  or  oncuml>rance  existed 
on  this  land;  and  that  on  this  assurance  ho  purchased 
the  land,  paid  the  purclia.so  money,  and  received  his  deed. 
On  this  somewhat  complicated  state  of  facts,  the  court 
held  that  the  purchaser  was  Imund  to  know  all  the  iniit- 
ters  disclosed  by  the  suit,  and  that  his  claim  to  tl.o  de- 
fense of  a  bona  fide  purchaser  could  not  bo  .iupi.ortod  by 


§   1001  RECITALS.  1386 

the  certificate  of  the  clerk.'  A  sold  land  to  B,  executing 
a  bond  for  a  title,  and  the  latter,  before  the  full  payment 
of  the  purchase  money,  sold  the  land  to  C,  also  executing 
a  bond  for  title,  and  directing  that  upon  the  payment  of 
the  balance  still  due  to  A,  that  the  latter  should  make  a 
deed  to  C,  retaining  a  lien  for  the  amount  to  be  paid  to  B 
by  C,  which  bond  was  registered.  C  paid  to  A  the  bal- 
ance due  to  him,  and  A  and  C  thereupon  executed  a  deed 
to  D.  The  deed  to  D  referred  to  the  registered  bond  for 
title,  but  failed  to  retain  a  lien.  Subsequently  E,  who 
had  no  actual  notice  of  any  vendor's  lien,  but  who  had 
knowledge  of  the  bond  referred  to  in  the  deed,  bought 
the  land  for  full  value  from  one  who  derived  title  un- 
der D.  It  was  held  that  E  was  put  upon  inquiry  by 
reference  in  the  deed  to  the  bond  for  title,  and  hence  was 
charged  with  constructive  notice  of  its  contents.^  A  city 
conveyed  to  trustees,  by  an  unrecorded  deed,  land  for  a 
cemetery.  Afterward,  when  the  use  of  the  cemetery  had 
been  discontinued,  and  some  of  the  bodies  had  been  re- 
moved, and  others  were  not  disturbed,  the  city,-for  a  valu- 
able consideration,  executed  a  quitclaim  deed  to  a  person, 
referring  to  the  premises  as  a  tract  formerl}'^  dedicated  for 
a  public  cemetery,  and  such  deed  and  the  ordinance  un- 
der which  it  was  made  were  subsequently  confirmed  by 
legislature.  An  action  was  brought  to  recover  the  land 
from  the  trustees,  and  the  court  held  that  the  quitclaim 
deed  by  its  recitals  imparted  notice  of  the  dedication  of 
the  land  by  the  unrecorded  deed,  and  that  by  the  latter 

^  Wood  V.  Krebbs,  30  Gratt.  708.  In  Burwell's  Executors  v.  Fauber, 
21  Gratt.  446,  the  court  say:  "Purchasers  are  bound  to  use  a  due  decree 
of  caution  in  making  their  purchases,  or  they  will  not  be  entitled  to  pro- 
tection. Caveat  emptor  is  one  of  the  best-settled  maxims  of  the  law,  and 
applies  exclusively  to  a  purchaser.  He  must  take  care  and  make  due 
inquiries,  or  he. may  not  be  a  bona  fide  purchaser.  He  is  bound  not  only 
by  actual,  but  also  by  constructive  notice,  which  is  the  same  in  its  effect 
as  actual  notice.  He  must  look  to  the  title  papers  under  which  he  buys, 
and  is  charged  with  notice  of  all  the  facts  appearing  upon  their  face,  or 
to  the  knowledge  of  which  anything  there  appearing  will  conduct  him. 
He  has  no  right  to  shut  his  eyes  or  his  ears  to  the  inlet  of  information, 
and  then  say  he  is  a  bona  fide  purchaser  without  notice." 

*  I'ayne  v.  Abercrombie,  10  Heisk.  161. 


1387  RECITALS.  §  1002 

deed  the  legal  title  passed  to  the  trustees  and  the  trust 
was  still  in  force,  and  hence  a  recovery  of  the  land  coukl 
not  be  decreed/  Though  the  instrument  is  not  recorded, 
and  a  party  may  have  no  actual  notice  of  it,  yet  it  he 
must  trace  his  title  through  it,  he  is  bound  by  whatever 
is  contained  in  it.^  A  mortgage  was  executed  in  Iowa  by 
an  owner  of  a  tract  of  land  to  secure  the  payment  of  sev- 
eral promissory  notes,  which  were  described  in  the  mort- 
gage. AVhen  the  mortgage  was  spread  upon  the  records* 
the  description  of  one  note  was  omitted.  Subsequently 
the  mortgagor  sold  the  premises  and  conveyed  the  same 
by  a  deed,  in  which  reference  was  made  to  the  mortgage, 
and  in  the  mortgage  the  aggregate  amount  of  the  several 
notes  was  correctly  stated.  The  grantee,  it  was  held,  took 
the  land  by  force  of  such  recital  in  his  deed,  with  notice 
of  the  mortgage  as  security  for  all  the  notes.' 

§  1002.  Failure  to  read  recitals. — Every  person  is  pre- 
sumed to  read  the  deed  under  which  he  holds,  and  a  fail- 
ure to  read  certain  recitals  contained  in  the  deed  cannot 
avail  him  as  a  defense  when  it  is  sought  to  charge  him 
with  notice.  A  person  claimed  title  under  a  deed  which 
stated  that  it  was  made  subject  to  "  two  mortgages  for  two 
thousand  dollars,"  and  contained  also  a  warranty  against 
all  claims  "except  said  mortgages."  On  the  land  em- 
braced in  the  deed  there  were  two  prior  mortgages,  (^no 
of  these,  amounting  to  fifteen  hundred  dollars,  was  re- 
corded, and  the  grantee  had  actual  knowledge  of  it. 
Of  the  other  he  had  no  notice  except  such  as  was  given 
by  his  deed.  As  a  matter  of  fact,  the  grantee  did  not 
read  his  deed,  and  did  not  actually  know  of  the  clauses 
referring  to  the  mortgages.  It  was  held  that  ho  must 
be  presumed  to  know  the  contents  of  iiia  deed,  and  tliat 
it  was  sufficient  to  put  him  upon  inquiry,  and  to  alVoct 
him  with  notice  of  the  mortgage  which  was  not  recorded.* 

»  Weisenberg  v.  Truman,  58  Cal.  63, 
>  Stees  V.  Kranz,  32  Minn.  'M.i. 

•  Dargin  v.  iJeeker,  10  Iowa,  571. 

*  Hamilton  v.  Nutt,  31  Conn.  501. 


§    1003  RECITALS.  1388 

"  Men  of  ordinary  prudence,"  said  Carpenter,  J.,  "  will  use 
all  reasonable  means  to  ascertain  the  state  and  condition 
of  their  own  titles.  Hence,  we  may  lay  it  down  as  a  rule, 
founded  upon  the  experience  of  mankind,  that  one  who 
has  knowledge  of  the  existence  of  a  deed,  to  which  he  has 
access,  and  which  affects  the  title  to  property  in  which  he 
is  interested,  will,  in  equity,  be  presumed  to  have  knowl- 
edge of  the  contents  of  the  deed.  And,  generally,  when 
a  purchaser  cannot  make  out  a  title  but  by  a  deed  which 
leads  him  to  another  fact,  he  shall  be  presumed  to  have 
knowledge  of  that  fact.  Under  our  recording  system  a 
deed  duly  recorded  is  constructive  notice  to  all  the  world; 
and  the  law  conclusively  presumes  that  every  person 
interested  has  knowledge  not  only  of  the  deed,  but  of  its 
precise  language,  where  that  is  material.  These  princi- 
ples apply  in  full  force  to  this  case.  If  a  man  will,  under 
certain  circumstances,  be  presumed  to  have  knowledge  of 
the  contents  of  the  deed  of  another,  how  much  more  rea- 
sonable is  it  to  presume  that  he  has  knowledge  of  the  con- 
tents of  his  own  deed.  Occasional  hardships  may  result 
from  the  application  of  this  rule;  but  it  is  believed  to  be 
founded  in  sound  policy,  and  that  in  a  large  majority  of 
cases  it  will  tend  to  prevent  fraud  and  promote  the  cause 
of  justice."^  "It  is  in  consonance  with  reason,  that  if 
the  title  deeds  under  which  a  purchaser  derives  title  recite 
an  encumbrance,  he  will  be  bound  by  that  recital,  and 
presumed  to  have  had  notice  of  it,  whether  he  has  read 
it  or  not.  For  the  law  will  not  permit  him  to  deny  notice 
by  insisting  that  he  has  no'  read  the  deed."^ 

§  1003.  Recitals  in  patents. — The  same  rule  as  to  re- 
citals in  deeds  applies  also  to  recitals  in  patents  from  the 
government.  A  person  who  traces  his  title  to  a  patent  is 
charged  with  notice  of  the  facts  contained  in  its  recitals.^ 

1  Hamilton  v.  Nutt,  34  Conn.  501. 

*  Wailes  v.  Cooper,  24  Miss.  208,  228,  per  Mr.  Justice  Yerger. 

'  Bonner  v.  Ware,  10  Ohio,  465.  See,  also,  Brush  v.  Ware,  15  Petera, 
93;  Bell?;.  Duncan,  11  Ohio,  192;  Ware  v.  Brush,  1  McLean,  533;  Reeder 
V.  Barr,  4  Ohio,  446;    22  Am.  Dec.  762;   Polk's  Lessee  v.  Wendall,  5 


1389  RECITALS.  §  1004 

If  a  patent  issues  to  one  as  assignee  of  another,  as  exec- 
utor of  a  third  person,  deceased,  a  purchaser  from  the 
patentee  must  determine  at  his  peril  whether  the  executor 
had  the  requisite  power  to  make  an  assignment  of  the 
warrant/ 

§   1004.     Presumption  of  satisfaction  of  vendor's  lieu. 

A  deed  recited  that  it  was  made  "  in  consideration  of  the 
sum  of  nine  hundred  and  thirty-seven  and  a  half  dollars, 
to  me  in  hand  paid,  or  secured  to  be  paid,  the  receipt 
whereof  is  hereby  acknowledged."  This  recital  was  held 
to  be  sufficient  notice  to  subsequent  purchasers  that  a 
vendor's  lien  existed,  and  it  was  incumbent  upon  such 
subsequent  purchasers  to  show  that  the  vendor's  lien  for 
any  unpaid  balance  had  been  removed,  waived,  or  aban- 
doned.^ And  when  it  is  recited  in  a  deed  that  the  sale  is 
made  on  credit,  it  is  the  duty  of  the  grantee  to  inquire 
whether  the  purchase  money  has  been  paid.  He  is  not 
authorized  to  presume  its  payment  from  the  fact  that  the 
time  for  the  payment  of  the  purcliase  money,  as  men- 
tioned in  the  deed,  has  elapsed.'  The  grantee,  if  he  had 
made  the  inquiry,  must  have  learned  the  truth,  and,  by 
failing  to  make  it,  he  is  guilty  of  such  negligence  as  pre- 
eludes  him  from  claiming  to  occupy  the  position  of  an 
innocent  purchaser  without  notice.-*  But  when  sufficient 
time  has  elapsed  to  bar  an  action  on  the  notes  taken  for 
the  purchase  money,  a  purchaser  or  judgment  cred- 
itor, although  the  notes  may  have  been  rencwe.l,  may 
rely,  it  is  held,  upon  the  presumption  that  thny  have 
been    paid."      "When  the    purchaser  appears   upon    the 

Wheat.  293;    Miller  v.  Kerr,  7   Wheat.    1;    Iloofnagie  v.   Anderson,  7 

Wheat.  212.  „     . 

1  Bonner  v.  Ware,  10  Ohio,  405.    A8  to  recitals  m  Mexican  gran  h  8«m, 
Ferris  ..  Coover,  10  Cal.  589 ;  Nieto  v.  Carpenter.  7  Oal.  527 ;  Scott  v.  Ward, 

'"^  '^Thornton  v.  Knox,  6  Mon.  B.  74.     See,  also.  Johnston  v.  Gwathmey, 

4  Litt.  317  ;  14  Am.  Dec.  135. 

»  Deason  V.  Taylor,  53  Miss.  697. 

*  Honore's  Executor  ..  Bakewell.  G  Mon.  B.  07;  43  Am.  Dec.  147. 

»  Avent  V.  McCorkle,  45  Miss.  221. 


§  1004  RECITALS.  1390 

face  of  his  deed  on  the  piihlic  records  of  the  county 
as  the  absolute  owner,  without  reservation  or  encum- 
brance, in  favor  of  tlie  vendor,  how  long  will  a  court 
of  conscience  recognize  his  lien  as  against  creditors  who 
have  recovered  judgments  against  the  vendee?  Can 
the  vendor,  by  protracted  indulgence,  keep  alive  his 
secret  privilege  after  a  presumption  may  fairly  arise  that 
the  debt  has  been  paid?  Credit,  in  a  very  large  measure, 
depends  upon  the  amount  and  value  of  property  which  a 
man  ostensibly  owns.  If  one  is  in  the  possession  of  land 
under  a  deed  made  ten  or  twelve  years  ago,  would  the 
community  be  justified  in  inferring  that  the  purchase 
money  had  been  paid,  and  might  not  prudent  men  give 
credit  on  the  faith  of  the  fact  ?  If  the  vendor  lie  by  all 
that  time,  taking  no  measures  to  enforce  his  claim,  should 
he  not  be  considered  as  holding  his  purchaser  out  to  the 
community  as  an  unencumbered  owner;  and  when  cred- 
itors under  subsequent  judgments  proceed  against  the 
land,  ought  he  not  to  be  postponed  to  them?  The  ven- 
dor's privilege  results  by  law  from  the  sale,  and  is  an  in- 
cident of  the  debt.  When  the  debt  is  barred  the  lien  is 
extinguished.  If  a  court  of  equity  would  keep  up  this 
lien  (as  against  intervening  claimants)  long  enough  to 
afford  the  vendor  a  full,  reasonable  time  to  get  in  his 
money,  as  long  as  a  right  of  action  at  law  is  preserved  to 
him  to  recover  the  debt,  it  would  seem  that  ample  pro- 
tection is  given  to  his  equity.  It  would  be  unreasonable 
and  fruitful  of  evil  to  leave  it  in  the  discretion  of  the 
vendor  to  indulge  and  postpone,  whether  by  renewals  or 
not,  so  that  others  may  be  entrapped  to  deal  with  the 
vendee  as  a  man  of  substance,  and  then  turn  upon  them 
and  say  that  they  did  so  at  their  risk,  and  sweep  from 
them  that  upon  which  they  trusted."^ 

'  Simrall,  J.,  in  Avent  v.  McCorkle,  45  Miss.  221.  In  Jndson  v.  Dada, 
79  N.  Y.  373,  tlie  facts  were  these :  An  owner  of  land  subject  to  a  mort- 
gage which  was  recorded  conveyed  a  portion  thereof  to  two  persons.  The 
deed  stated  the  property  was  "supposed  to  be  eighty  acrep."  The 
grantor  covenanted  that  in  case  of  a  deficiency  she  would  pay  therefor  at 
the  rate  of  thirty  dollars  per  acre.     The  grantees  assumed  and  agreed  to 


1391  EECITALS.  §  1005 

§   1005.     Indefinite  description. — It  is  not  essential  in 
all  cases  that  the  recital  should  be  so  certain  in  its  terms 
as  to  apprise  the  purchaser  of  all  the  rights  of  another. 
It  will  charge  him  with    notice  if  it   is  sutficieut   to  put 
him  upon  inquiry.     A  testator  devised  to  his  son  Robert, 
"  fifty  acres  on  the  west  end  of  the  place  previously  given 
to  his  son  Michael,  for  ten  years,  and  at  the  end  of  that 
time  to  hold  the  same  by  paying  to  Michael  five  dollars 
per  acre  in  installments,  to  be  given  him  on  either  side  of 
the  road,  as  Michael  may  think  proper."     A  certain  por- 
tion of  the  premises    was  set  off  at  the  west  end  of  the 
tract    devised,  though    a  clearing    had  first    been    com- 
menced at  the  east  end  by  an  agreement  between  the  two 
sons,  and  had  been  paid  for,  but  no  deed  had    been  exe- 
cuted, nor  was  there  any  continued  possession  on  the  part 
of  Robert.     An  heir  of  Robert  brought  an  action  of  eject- 
pay  the  whole  mortgage  in  consideration  for  the  deed.    It  having  been 
ascertained  subsequently  that  there  was  a  d.-ficie'icy  in  tlie  land  con- 
veyed, the  grantor  executed  to  the  grantees  a  writing,  agn-cing  tint  slie 
would  save  them  harmless  to  the  amount  of   $273.82  from  any  chiiiu 
under  the  mortgage.    This  latter  sum  was  what  the  deficiency  would  hi\ 
The  grantor  afterward  conveyed  the  remaining  portion  of  the  pronerty 
to  other  persons,  and  covenanted  that  the  same  was  free  and  clear  from 
all  encumbrances.     An  action  was  brought  to  foreclose  the  mortitagc, 
and  the  court  held  that  the  grantees  of  the  residue  were  entitled  to  no 
greater  equities  than  those  which  the  grantor  ha  1  at  Ihe  time  she  con- 
veyed, and  intimated,  though  it  did  not  so  decide,  that  eullicient  wa-  con- 
tained in  the  first  deed  to  put  the  suhsequent  grantees  upon  inciuiry.  imd 
charge  them  with  constructive  notice  of  the  release  by  the  gr  .ntorlo 
the  first  grantees  to  the  extent  of  the  value  of  the  deficit,  in  case  a  no- 
tice was  required.   See,  also,  Howard  Ins.  Co.  v.  Ilaisey.  8  N.  Y.  M  Seld.) 
271;  59  Am.  Dec.  478;  Green  v.  Slayter,  4  Johns.  Oh.  38;   Hope  v.  Lid- 
dell',  21  Beav.  183;  Canbridge  Bank  v.  Delano.  48  N.  Y.  32«;  ll..wiir.l  v. 
Chase,  104  Mass.  249;  Hudson  v.  Warner.  2  Har.  &  G.  415;  G.irn-tt   v. 
Puckett,  15  Ind.  485;  Ross  t;.  Worth ington,  11  Minn.  438;  >H8  Am.  l>i'c. 
95-  Taylor  v.  Stibbert,  2  Ves.437;  Martin  v.  Cotter,  3  JonoH  A  L.  A\M. 
506;  Clements  v.  Welles,  Law  R.  1  Eq.  200;  Hall  v.  Smith.  14  V.-«.  42'i: 
Cosst^r  V.  CoUinge.  3  Mylne  &  K.  282;  Lewis  v.  Bond.  18  iW-av.  85;  Cox 
V.  Coventon,  31  Beav.  378;  Wilbraham  v.  Uvosoy.  18  '»;"'^- -•<^;|' T-inn.T 
;.  Florence,  1  Ch.  Cas.  Ch.  25!);  Walter  v.  Maund  •.  1    .UvnhJ.  W  •    HI; 
Drysdale  v.  Mace,  2  Smale  &  G.  225;  Pope  v.  (ia.land.  4  ^o,.n^.^.V  C. 
394;  Smith  ..  Capron.  7  Hare,  185;  liabcock  ..  Li-k.  57  111    32-.:  Marlin 
t,.Nash,  31  Miss.  324;  Sanborn  v.  R  .ImiHon.  54   N.   H.   ^.W;  Brown  v. 
Simons,  44  N.  H.  '475;  Brigga  v.  Palmer,  20  Barb.  392;  20  N.  Y.  16. 


§  1006  RECITALS.  1392 

meat  against  a  purchaser  at  a  sheriff's  sale  under  Michael, 
who  claimed  to  hold  as  a  purchaser  without  notice.  But 
the  court  held  that  the  will  was  notice  to  hitn  of  a  devise 
of  fifty  acres  off  the  northwest  corner  of  the  tract,  which 
part,  unless  it  had  been  selected  elsewhere,  was  the  part 
best  answering  the  description  in  the  will.  A  person  who 
read  the  will  would  be  under  obligation  to  inquire  if  the 
devisee  had  obtained  his  fifty  acres,  and  at  what  time.^ 

§  1008.     Collateral  circumstances. — While   a  grantee 
is  bound  to  take  notice  of  everything  that  appears  on  the 
face  of  the  deeds  in  his  chain  of  title,  he  is  not  compelled 
to    prosecute    an   inquiry    into    collateral  circumstances. 
And  where  a  deed  refers  to  another,  he  is  not  required  to 
take  notice  of  a  fact  exhibited  in  the  latter  deed  which  is 
completely  foreign  to  the  subject  of  the  reference.^     He  is 
not  obliged,  for  instance,  to  take  notice  that  the  deed  to 
which  reference  is  thus  made   has  incorporated  into  it  a 
bill  of  sale  of  personal  property  on  which  the  grantor  at- 
tempts  to  retain    a  lien.^     A  purchaser   is  affected  with 
notice  by  a  recital   so  far    as  it  concerns  the  title  to  the 
land  purchased.     He  is  not  affected  with  notice  with  re- 
spect to  the    title  of  any    other  land  than   that  which   is 
transferred  by  such  deed.^ 

1  McAteer  v.  McMullen,  2  Pa.  St.  32. 

«  Mueller  v.  Engeln,  12  Bush,  441 ;  Burch  v.  Carter,  44  Ala.  115. 

3  Mueller  v.  Engeln,  12  Bush,  441. 

*  Boggs  V.  Varner,  6  Watts  &  S.  469.  In  this  case  (at  page  474),  it  is 
said  on°the  question  of  whether  notice  should  be  proven  by  vague  and 
uncertain  evidence,  by  Rogers,  J:  "A  court  of  equity  acts  on  the  con- 
science, and  as  it  is  impossible  to  make  any  demand  on  the  conscience 
of  a  man  who  has  purchased  for  a  valuable  consideration,  bona  fide  and 
without  notice  of  any  claim  on  the  estate,  such  a  man  is  entitled  to  the 
peculiar  favor  of  a  court  of  equity.  As  every  presumption  is  in  favor  of 
the  subsequent  purchaser,  when  the  former  owner  is  guilty  of  neglect, 
his  title  cannot  be  postponed  except  by  evidence  which  taints  his  con- 
duct with  fraud.  And  this,  it  is  obvious,  ought  not  to  be  done  by  testi- 
mony in  its  nature  vague  and  indefinite,  and  leading  to  no  certain 
results,  such  as  that  he  ought  to  have  known  of  the  prior  title  because 
he  lived  near  the  owner,  in  the  same  town,  perhaps,  or  on  the  next  lot, 
that  he  was  well  acquainted  with  him,  or  because  the  title  was  well 
known  to  others.    This  may  all  be  true,  and  yet  at  the  time  he  pays  his 


1393  RECITALS.  §§  1007,  1008 

§  1007.  Jfotiee  of  trust  in  favor  of  grantee. — Where 
a  deed  is  made  for  a  nominal  consideration,  and  contains 
a  recital  that  it  is  made  in  pursuance  and  fulfillment  of  a 
trust  reposed  in  the  grantor  by  the  grantee,  the  recital  is 
not  notice  of  a  trust  in  favor  of  any  other  person  than  the 
grantee  himself.  This  is  said  to  be  especially  true  when 
the  deed  is  made  to  the  grantee  and  his  heirs  in  fee  simple, 
for  the  only  proper  use  and  behoof  of  the  said  grantee 
and  his  heirs  and  assigns  forever.^ 

§  1008.  Bond  for  deed. — A  purchaser,  being  pre- 
sumed to  know  every  fact  to  which  he  is  led  by  a  deed 
forming  a  link  in  the  chain  of  his  title,  cannot  in  equity, 
escape  from  the  effect  of  such  presumption,  because  an 
equitable  right,  and  not  a  legal  one,  is  the  fact  to  which 
he  is  referred.  A  took  a  mortgage  from  B,  on  premises 
to  which  B  had  title  under  a  deed  from  C,  which  con- 
tained this  recital:  "  This  conveyance  is  made  in  pursu- 
ance of  a  contract  of  sale  of  said  premises,  made  and 
entered  into  by  the  party  of  the  first  part  for  a  conveyance 
thereof  to  one  D,  of  whom  the  said  party  of  the  second 
part  has  become  the  assignee  or  purchaser,  and  as  sucli 
entitled  to  a  fulfillment  thereof,  by  virtue  of  this  convey- 
ance," the  contract  being  identified  by  its  date.  The 
court  held  that  A  took  his  mortgage  with  notice  of  the 
equitable  right  of  D  to  a  conveyance  from  C,  and  of  the 
terms  of  the  agreement  between  D  and  B,  upon  whicii 
the  right  of  B  to  a  deed  from  C  was  founded.*  Aiid  a 
bond  for  title,  held  by  tlie  vendee,  is  sufficient  trt  charge 
a  purchaser  from  him  with  notice  of  tlie  lion  of  the  ven- 
dor for  the  unpaid  purchase  money.' 

money,  he  may  be  ignorant  of  any  otlier  title  than  IiIh  f)wn.  It  in  not 
just  that  inferences  should  be  strained  in  favor  of  the  ])er8on  by  whose 
default  the  mischief  has  Vjeen  done." 

'  Kaine  v.  Denniston,  22  Pa.  St.  202. 

*  Acer  V.  Westcott,  1  Lans.  193. 

'  Newsome  v.  Collins,  43  Ala.  063;  Bradford  v.  TTarper,  2.')  Ala.  :!:?7. 

And  see  Sergeant  v.  Reynolds,  15  Pa.  St.  343;  Witter  r.  DiidU-y,  412  Ala. 

616;  Campbell  v.  Roach,  45  Ala.  (167;  .Tohnson  v.  Thwcatt,  18  Ala.  741; 

Coy  V.  Coy,  15  Minn-.  119.     "The  question  of  the  HuHiciency  of  notice  is 

Deeds,  Vou  11.  —  b8 


§   1009  RECITALS.  1394' 

§  1009.  Recital  of  nominal  consideration  as  evidence 
of  fraud  of  trustee. — As  a  general  proposition,  when  the 
trust  is  defined  as  to  its  object,  but  it  is  provided  that  the 
property  may  be  sold,  and  the  proceeds  reinvested  upon 
trusts  that  require  a  certain  time  to  be  made,  and  call  for 
the  exercise  of  discretion  on  the  part  of  the  trustee,  the 
purchaser  is  not  bound  to  see  to  the  application  of  the 
purchase  money.  By  a  deed  properly  recorded  land  was 
conveyed  to  a  person  in  trust.  The  deed  of  trust  gave  the 
trustee  power  to  sell  the  property,  and  to  reinvest  the 
proceeds,  if  the  sale  were  for  the  benefit  of  the  cestui  que 
trust.  The  trustee  executed  a  deed  conveying  the  land, 
in  consideration  of  one  dollar  and  other  valuable  consid- 
erations. The  grantee  under  this  deed  mortgaged  the' 
land  and  reconveyed  it  to  the  trustee,  subject  to  the 
mortgage.  After  the  registration  of  these  deeds,  the  mort- 
gagee assigned  the  mortgage.  The  recital  in  the  deed 
from  the  trustee  was  held  not  to  be  sufficient  notice  to 
the  assignee  that  the  acts  of  the  trustee  were  not  in 
accordance  with  the  power  conferred  upon  him.  There 
was  no  obligation  upon  the  assignee  to  see  whether  the 
trustee  had  reinvested  the  money  obtained  from  the 
sale.^  "  The  assignee  of  the  mortgage,"  said  Colt,  J., 
"  was  not  bound  to  ascertain  at  her  peril,  whether  it  was 
in  fact  a  sale  upon  which  the  trustee  actually  received  the 
money;  and  her  title  cannot  be  defeated,  unless  she  had 
actual  or  constructive  notice  of  the  alleged  fraud.  It  is 
contended  that  the  recital  in  the  deed,  that  it  was  given 
in  consideration  of  one  dollar  and  of  other  valuable  con- 
siderations, is  either  actual  or  constructive  notice  that 
the  trustee  received  no  money  for  the  deed,  and  that  it 
was  given  in  violation  of  the  trust.  But  this  recital  can- 
not be  regarded  as  actual  or  positive  notice  of  the  fact 
charged,  because,  assuming  that  a  subsequent  purchaser 

often  embarrassing,  and  sometimes  diflBcult  of  solution.   But,  as  a  general 
rule,  to  charge  a  purchaser,  the  notice  must  be  such  as  explains  itself  by 
its  own  terms,  or  refers  to  some  deed  or  circumstance  which  explains  it, 
or  leads  to  its  explanation" :  White  v.  Carpenter,  2  Paige,  217,  249. 
^  Norman  v.  Towne,  130  Mass.  52. 


1395  RECITALS.  §  1009 

is  to  be  affected  by  it  under  our  registry  law,  still,  the 
language  does  not  necessarily  import  misconduct  in  the 
trustee,  or  that  there  was  an  absence  of  consideration.  It 
is  entirely  consistent  with  the  fact  that  the  consideration 
was  received  in  securities  taken  by  the  trustee  as  a  valid 
change  of  investment,  and  in  fulfillment  of  the  trust. 
And  although  the  fact  that  the  actual  consideration  is  not 
stated  in  the  usual  form  may  be  competent,  in  connection 
with  other  evidence,  to  show  that  the  purchaser  was,  by 
all  the  circumstances,  put  upon  inquiry,  and  therefore  is 
chargeable  with  constructive  notice,  yet  the  recital  alone 
is  plainly  not  enough  to  raise  in  law  a  conclusive  pre- 
sumption of  notice."^  Somewhat  similar  in  principle  is 
the  case  where  A  borrowed  three  hundred  dollars  of  B, 
and  transferred  and  delivered  to  him  a  note  and  mort- 
gage for  fifteen  hundred  dollars  as  collateral  security  for  the 
loan,  the  assignment  of  the  mortgage  being  absolute  in 
form  and  reciting  a  consideration  of  three  hundred  dollars, 
the  amount  borrowed.  Before  the  maturity  of  the  note,  B 
transferred  it  and  assigned  the  mortgage  to  C,  as  collateral 
security  for  a  loan  of  twelve  hundred  dollars.  A  brouglit  a 
suit  in  equity  against  B  and  C  to  redeem  the  note  and  mort- 
gage. The  court  held  that  the  recital  of  the  consideration 
in  the  assignment  of  the  mortgage  to  B  was  not  of  itself 
sufficient  to  put  C  on  inquiry,  or  to  show  that  he  acted 
fraudulently,  and  A  could  exercise  the  right  of  redemp- 
tion only  by  paying  the  amount  for  which  C  held  the 
note  and  mortgage  as  collateral  security.'*     The  notice,  in 

1  Norman  v.  Towne,  130  Mass.  52. 

«  Briggs  V.  Rice,  130  Mass.  50.  The  court,  per  Colt,  J.,  ea'vl :  "  It  Ih  not 
easy  to  state  by  rule  what  constitutes  in  equity  iinpliiMl  or  countnutivo 
notice,  because  it  depends  in  most  cases  upon  a  gn-at  variety  of  «-iri-iiiu- 
stances,  having  a  tendency  to  excite  suspicion,  or  showing  frandiili-nt 
purpose.  The  general  rule  is.  that  whatever  puis  a  irtirty  upon  inquiry 
amounts  to  notice,  provided  the  inquiry,  as  in  the  case  of  a  i.urcluiwr. 
is  a  duty,  and  would  lead  to  a  knowledge  of  the  fact.  It  is  left  to  U*  de- 
cided in  each  case  what  is  suincient  to  put  a  party  on  inciuiry.  In  tho 
present  case,  the  fact  relied  on  is  clearly  not  Butliciont.  Tlie  defendant 
became  holder  of  this  note  for  a  valuable  conhi«leration  U-Um  itH  ma- 
turity. He  had  no  gctual  notice  of  any  eqiiitiiH  which  would  defeat  his 
right  to  recover  an  amount  sullicieut  to  secure  tho  payment  of  the  debt 


§  1009  RECITALS.  1396 

other  words,  derived  from  matters  of  record,  is  never 
construed  as  being  more  extensive  tlian  tlie  facts  stated 
by  the  record.^ 

for  which  it  was  pledged.  As  owner  of  the  mortgage  note,  he  was,  in 
fact,  entitled  in  equity,  without  any  assignment,  to  claim  the  benefit  of 
the  mortgage  security.  The  mortgage  in  this  case,  however,  was  as- 
signed to  him  by  one  who  had  a  perfect  record  title.  It  is  well  settled 
that  the  consideration  expressed  in  a  deed  is  not  conclusive,  and  it  is 
always  open  to  show  what  the  real  consideration  was,  and  that  it  was 
more  or  less  than  the  amount  named :  Bullard  v.  Briggs,  7  Pick.  533 ;  19 
Am.  Dec.  292.  The  recital  of  an  inadequate  consideration  in  the  assign- 
ment under  which  Eice,  the  assignor  of  Gooding,  claimed,  if  brought  to 
the  knowledge  of  the  latter,  might  be  competent  as  one  circumstance  in 
connection  with  other  evidence  to  charge  him  with  gross  negligence  or 
a  fraudulent  purpose,  but  is  not  alone  sufficient  to  put  him  on  inquiry, 
or  prove  fraud  on  his  part.  It  is  not  easy  to  see  in  it  anything  calcu- 
lated even  to  arouse  suspicion.  It  is  consistent  with  the  fact  that  the 
amount  of  three  hundred  dollars  was  agreed  on  by  the  parties  as  the  fair 
value  of  the  mortgaged  property,  or  that  it  was  fairly  bought  for  that 
sum  by  Rice.  It  does  not  necessarily  imply  any  defect  or  qualification 
of  the  apparent  title  in  him.  It  certainly  cannot  be  treated  as  actual 
notice  that  the  note  was  subject  to  some  unknown  equity,  the  nature  of 
which  it  was  the  duty  of  the  defendant  to  ascertain  at  his  peril.  As  a 
prudent  man,  taking  a  note  not  yet  due,  it  was  sufficient  for  him  to  know 
that  the  assignment  transferred  to  him  a  good  title  to  the  mortgage 
security.  It  is  not  enough  that  an  overprudent  and  cautious  person,  if 
his  attention  had  been  called  to  the  circumstance  in  question,  would 
have  been  likely  to  seek  an  explanation  of  it.  There  must  be  some  clear 
neglect  to  inquire,  after  actual  notice  that  the  title  is  in  some  way  de- 
fective, or  some  fraudulent  and  willful  blindness,  as  distinguished  from 
mere  want  of  caution :  Jones  v.  Smith,l  Hare,  43, 55,  and  1  Phillips,  244; 
Ware  v.  Lord  Egmont,  4  De  Gex,  M.  &  G.  460;  Dexter  v.  Harris,  2  Ma- 
son, 531 ;  Buttrick  v.  Holden,  13  Met.  355 ;  Jackson  v.  Valkenburgh,  8 
Co  wen,  260." 

»  Gale's  Executor  v.  Morris,  29  N.  J.  Eq.  222. 


CHAPTER   XXIX. 

DESCRIPTION. 

§  1010.    Certainty  of  description. 

§  1011,    Illustrations  of  uncertainty. 

§  3012.    What  is  a  sufficient  description. 

§  1013.    Illustrations. 

§  1014.     Land  of  reputed  owner  as  boundary. 

§  1015.    General  description  and  unrecorded  deed. 

§  1015  a.  Situation  and  condition  shown  by  parol  evidence. 

§  1016.    Surplusage. 

§  1017.    Illustrations. 

§  1018.    Subject  continued. 

§  1019.     Parcel  of  larger  tract. 

§  1020.    Reference  to  maps  or  other  deeds. 

§  3020a.  Conflict  between  map  and  survey. 

§  1021.    Loss  of  plat. 

§  1022.    Parol  evidence  as  to  plat. 

§  1023.     Right  to  way. 

§  1024.    Land  bounded  by  non-navigable  stream  or  highway. 

§  1025.    Where  contrary  intention  appears. 

§  1026.    Land  bounded  by  lake  or  pond. 

§  102Ga.  Effect  of  meander  lines. 

§  1027.    Estoppel  from  description  of  land  as  bounded  by  a  street. 

§  1028.    Navigable  sl'reams  and  tide  waters. 

§  1028a.  Reason  for  these  rules. 

§  1028b.  Presumption  overcome  only  by  actual  reservation. 

§  1029.     Courses  and  distances  controlled  by  monuments. 

§  1029a.  Erroneous  dc.scri])liou  in  incident  of  t'tle. 

§  1030.    When  courses  and  distances  prevail. 

§  lOSl.    Latont  ambiguity  as  to  monument  Intended. 

§  1031a.  Supplying  omissions. 

§  1032.    Subsequent  survey. 

§  1032a.  Reliance  on  survey. 

§  1033.    donflict  between  starting  point  and  other  call* 

§  1034.     Running  to  line  of  anotlicr  tract. 

§  1035.    "Northerly,"  "due  nortli",  etc. 

§  1036.    Division  lines  by  consent. 

§  1037.    Line  lor-atod  by  mistako. 

§  1037a.  Further  eonsiderntiDn  of  Huliject. 

§  1038.    Two  descriptions  in  deed. 

(V.97) 


§  1010  DESCRIPTION  1398 

§  lOoSa.  INIiddle  point  of  physical  oV)ject  intended. 

§  1039.  Repugnance  between  general  and  particular  description. 

§  1040.  Some  illustrations. 

§  1041.  Particular  description  uncertain. 

§  1042.  Parol  evidence. 

§  1043.  Description  applying  to  several  tracts. 

§  1044.  Quantity  of  land  enumerated. 

§  1045,  Intention  that  quantity  shall  control. 

§  1046.  Words  "more  or  less." 

§  1010.  Certainty  of  description. — The  description  of 
the  premises  conveyed  must  be  sufficiently  definite  and 
certain  to  enable  the  land  to  be  identified;  otherwise  it 
will  be  void  for  uncertainty.^  A  suit  in  ejectment  was 
commenced  to  recover,  "the  northwest  fourth  of  the 
southwest  quarter  of  section  eleven,  township  fifty-three, 
range  sixteen,"  embracing  forty  acres.  The  deed  con- 
veyed several  tracts,  but  the  only  designation  in  the  deed 
which  would  include  the  forty-acre  tract  for  which  suit 
was  brought  was,  "the  southwest  quarter  of  section 
eleven,  containing  forty  acres."  As  a  quarter  section 
contains  four  forty-acre  tracts,  it  was  impossible  to  de- 
cide to  which  forty-acre  tract  the  description  applied. 
This  ambiguity  in  the  description  was  held  to  be  patent, 
and  hence  incapable  of  removal  by  extrinsic  evidence* 
A  suit  in  ejectment  founded  on  such  a  deed  must  fail. 
The  title  should  be  first  perfected  by  an  action  brought 
for  the  reformation  of  the  deed.^  But  to  render  the  deed 
void  for  uncertainty  in  the  description,  the  ambiguity 
must  be  patent  and   appear   on   the   face   of  the  instru- 

'  People  V.  Klumpke,  41  Cal.  263;  Wofford  v.  McKinna,  23  Tex.  36, 
44;  76  Am.  Dec.  53;  Williams  v.  Western  Union  R,  R.  Co.,  50  Wis.  71; 
Campbell  v.  Johnson,  44  Mo.  247;  Boardman  ii.  Read,  6  Peters,  328; 
Bailey  v.  White,  41  N.  H.  337.  See  Gatewood  v.  House,  65  Mo.  663; 
United  States  V.  King,  3  How.  773;  Sneed  r;.  Woodward,  30  Cal.  430; 
Montag  V.  Linn,  23111.  551;  Kea  v.  Robeson,  5  Ired.  Eq.  375;  Lumbard 
•y.  Aldrich.SN.  H.31;  28Am.  Dec.38I.  See,  also,  Cummings  v.  Browne, 
61  Iowa,  385;  Shoemaker  t).  McMonigle,  86  Ind.  421 ;  Brown  v.  Chambers, 
63  Tex.  131;  Freed  v.  Brown,  41  Ark.  495;  Howard  v.  North,  5  Tex.  290; 
51  Am.  Dec.  769;  Cunningham  v.  Thornton,  28  111.  App.  58. 

*  Campbell  v.  Johnson,  44  Mo.  247. 


1309  DESCRIPTION.  §  1010 

ment.^  A  deed  is  void  for  uncertainty  which  describes 
the  land  conveyed  as  "one  tract  of  land  lying  and 
being  in  the  county  aforesaid,  adjoining  the  lands  of 
John  J.  Phelps  and  Norfleet  Pender,  containing  twenty 
acres  more  or  less."^  x  deed  is  void  for  uncertainty, 
if  from  its  face  it  is  apparent  that  there  are  two  lots  to 
which  the  description  is  equally  applicable.'  Such  an 
ambiguity  cannot  be  explained  by  parol  evidence.*  So  a 
grant  from  the  State  is  void  in  which  the  description  is 
"a  tract  of  land  containing  one  hundred  and  seventy- 
three  acres,  lying  and  being  in  our  county  of  Wilkes,  on 
a  big  branch  of  Luke  Lee's  Creek,  beginning  at  or  near 
the  path  that  crosses  the  said  branch,  that  goes  from 
Crane's  to  Sutton's  on  a  stake,  running  west  28  chains  50 
links  to  a  white  oak,  on  Miller's  line,  then  nortli  00  chains 
to  a  stake,  then  east  28  chains  50  links  to  a  stake,  then 
south  fiO  chains  to  the  beginning."^  A  description  in  a 
memorandum  of  contract  of  the  land  to  be  conveyed  as  a 
tract  of  one  hundred  and  fifty  acres,  "lying  on  Watery 
Branch,  in  Johnston  County,"  is  so  indefinite  that  no  de- 
cree for  a  conveyance  can  be  based  upon  it.*  So  a  de- 
scription, "for  fifty  acres  of  land,  situate  and  lying  on  the 

*  Hardy  v.  Matthews,  38  Mo.  121;  Johnson  v.  Ashland  Luinbor  Co., 
52  Wis.  4  8. 

2  Dickens  v.  Barnes,  79  N.  C.  490.  Said  Faircloth,  J.,  spfakinK  for 
the  court:  "It  fails  to  identify  or  to  furnish  the  mean-s  of  i<l<-nt.fying 
under  the  maxim,  id  cerium  est  quod  cerium  red<li  potest,  tlio  laml  in  iws- 
session  of  the  defendant,  the  locus  in  quo.  It  yives  neither  courHO  nor 
distance  of  a  single  line,  nor  a  single  point,  stake,  or  corner,  anywiioro 
to  begin  at.  Does  the  tract  lie  on  the  north,  nouth.  east,  or  woHt  side  of 
the  lands  of  Phelps  and  Pender?  Wiiat  course  would  thti  surveyor  lako 
if  he  had  a  beginning  point  ?  These  questions  cannot  \)e  answered  l)y 
the  aid  of  facts  dehors  the  deed,  established  by  parol  proof,  iKJcnuso  it  is  a 
patent  ambiguity,  a  question  of  law  for  the  court,  and  not  one  of  fact 
for  the  jury."  When  the  description  in  tlie  deed  contains  no  ambiguity, 
and  when  none  appears  wiien  it  is  aiM'lied  to  the  land,  tlie  intent  must 
be  ascertained  from  the  language  used  in  the  deed:  Muldoou  v.  Deliuo, 
135  ^'.  Y.  150. 

»  Brandon  v.  Led.Iy,  67  Cal.  43. 

*  Brandon  v.  Leddy,  67  Cal. '43. 

^  Hinchey  v.  Nichols,  72  N.  C.  66. 
«  Capps  V.  Holt;  5  Jones  Efi.  153. 


§  1011  DESCRIPTION.  1400 

lieudwaters  of  Elk  Shoal  Creek  as  far  as  the  waters  of 
Radford  Creek,  to  interfere  with  no  land  before  sold,"  is 
insufficient  to  admit  of  the  introduction  of  parol  evidence 
to  identify  the  land.^ 

§  1011.  Illustrations  of  uncertainty. — The  descrip- 
tion, "beginning  at  a  point  in  Laurel  Swamp;  thence 
along  the  margin  of  the  swamp  to  a  point;  thence  north 
85  deg.  W.  90  poles;  thence  40  deg.  W.  86  poles;  thence 
N.  40  deg.  east  60  poles  to  a  point  in  a  pond;  thence  along 
the  pond  to  a  point;  thence  S.  77  deg.  88  poles  to  the  be- 
ginning, containing  one  hundred  and  forty-four  acres  on 
the  south  side  of  Broad  Creek,  lot  10,"  is  so  vague  that 
no  land  can  be  located  under  it.^  A  stake,  unless  identi- 
fied, is  an  imaginary  point,  and  therefore  no  land  can  be 
located  under  a  description  in  which  the  beginning  call 
is  for  a  stake,  and  the  remainder  of  description  is  for 
course  and  distance.^  In  the  description  in  a  deed  the 
boundary  line  was  given  as  running  from  a  creek  which 

^  Radford  v.  Edwards,  88  N.  0.  347.  The  court  said,  the  instrument 
being  a  bond  for  a  deed:  "As  land,  unless  it  has  as  a  tract  or  lot  ac- 
quired a  name  to  distinguish  it,  and  by  which  it  is  known,  can  only  be 
ascertained  by  boundary  lines,  and  separated  from  all  other,  the  neces- 
sity of  identifying  by  a  description  which  admits  of  a  definite  location  ia 
obvious ;  and  where  this  cannot  be  done,  no  title  to  it  as  a  distinct  por- 
tion can  pass  by  the  deed  or  written  instrument,  the  sole  office  of  parol 
evidence  being  to  fit  the  description  to  the  thing  described,  and  not  to 

add  to  the  words  of  description Recurring  to  our  own  case,  it 

may  be  asked  how  can  the  surveyor  find  a  starting  point  on  either  creek? 
And  if  he  could,  how  far,  if  he  pursues  the  course  of  the  creek,  is  he  to 
run,  and  where  stop  for  a  corner?  In  what  direction  will  he  go  thence 
to  the  other  creek,  and  where  find  a  corner  there?  And  how  will  he  get 
back  to  the  assumed  beginning?  These  inquiries  find  no  solution  in  the 
instrument,  and  the  runnings  must  be  wholly  arbitrary  in  order  to 
ascertain  where  the  fifty  acres  lie.  There  is  not  furnished  even  any 
indicia  of  the  form  of  the  land ;  and  if  form  were  given,  the  locations 
could  be  made  indefinite  in  number,  and  all  fulfilling  equally  the  condi- 
tions and  requirements  of  the  language  of  the  bond." 

*  Archibald  v.  Davis,  5  Jones  (N.  0.),  322. 

^  Mann  v.  Taylor,  4  Jones  (N.  C),  272;  69  Am.  Dec.  750.  In  tliia 
case  the  descrij^tion  was:  "  Beginning  at  a  stake,  running  thence  north 
500  chains,  thence  west  250  chains,  thence  south  500  chains,  thence  east 
250  chains,  to  the  first  station."  See,  also,  Massey  v.  Belisle,  2  Ired. 
170. 


1401  DESCRIPTION.  §   1011 

was  several  thousand  feet  in  length,  without  any  other 
designation  of  the  starting  point.  This  rendered  the 
land  incapable  of  identification,  for  the  reason  that  the 
condition  of  tlie  description  could  be  complied  with  by 
running  a  line  starting  from  any  position  on  the  creek. 
The  deed,  on  account  of  the  incurable  uncertainty  in  the 
description,  thus  became  inoperative.^  But  where  a  call 
in  a  deed  is  from  a  certain  point  "to  the  hills,"  this 
term,  though  by  itself  indefinite,  will,  in  case  of  a 
studied  repetition  of  that  call  in  all  the  deeds  forming 
the  chain  of  title,  prevail  over  a  call  for  a  specified  quan- 
tity of  land.^  A  description  giving  the  number  and  sub- 
divisions of  certain  sections  only,  but  omitting  the  names 
of  the  township,  range,  or  county  in  which  the  land  is 
situated,  renders  the  deed  void  for  the  patent  ambiguity 
in  the  description.^  But  if  the  land  is  situated  in  a  city, 
and  the  land  is  described  as  being  in  a  certain  city, 
although  the  name  of  the  State  or  county  may  not  be 
given,  the  court,  in  an  action  of  ejectment  in  which  the 
deed  is  offered  in  evidence,  will  take  notice  that  such  city 
is  in  a  certain  county  in  the  State.*     And  where  a  party 

*  Le  Franc  v.  Richmond,  5  Saw.  601. 

'  Glamorgan  v.  Horns  by,  13  Mo.  App.  550.  See  Glamorgan  v.  Baden 
etc.  Ry.  Co.,  72  Mo.  139. 

»  Fuller  V.  Fellows,  30  Ark.  657. 

*  Harding  v.  Strong,  42  111.  148 ;  89  Am.  Dec.  415.  In  this  case  the 
description  was:  "  Those  certain  tracts  or  parcels  of  land  situated  in  the 
Haley's  addition  to  the  city  of  Monmouth,  known  as  lot  five  in  block 
one,  and  lot  seven  in  block  ten,  in  south  addition  to  said  city."  A  deed 
is  void  for  uncertainty  which  describes  the  land  sought  to  be  conveyed 
as  the  "southeast  corner"  of  a  quarter  section,  without  stating  dimen- 
Bions,  or  describing  land  as  "the  southwest  fractional  part  of  the  north 
one-half"  of  a  quarter  section,  but  not  stating  the  quantity  or  location: 
Morse  v.  Stockman,  73  Wis.  89.  Where  land  is  described  as  "south  part 
of  southeast  quarter  of  section  five,"  and  also  as  the  "south  part  of  sec- 
tion five,  225  acres,"  while  the  first  description  is  void  for  uncertainty, 
recovery  may  be  had  of  that  part  of  the  southeast  quarter  embraced  in 
the  latter  description,  the  latter  description  being  sufficient  to  pass  title 
to  a  strip  containing  225  acres  of  equal  depth  with  the  southern  bound- 
ary of  the  whole. section  as  the  base  line  for  measurement:  Ticrney  t;. 
Brown,  65  Miss.  563;  7  Am.  St.  Rep.  679.  When  land  is  (^oscribt'd  as 
"one-third  of  a  league  of  land  purchased  by  me  of  Ponreseno  Nanez, 


§  1011  DESCRIPTION.  1402 

enters  in  the  United  States  land-office  certain  tracts  of 
land,  describing  tliein  by  section,  township,  and  range, 
and  they  are  shown  to  be  in  a  certain  county  within 
the  State,  and  afterward,  by  a  deed  executed  in  the 
same  State,  conveys  a  portion  of  such  land,  describing 
it  also  by  section,  township,  and  range,  but  not  designat- 
ing tlie  county  or  State  in  which  the  land  is  situated,  it 
has  been  held  that  it  will  be  presumed  that  the  deed  was 
intended  to  convey  land  in  the  State/  It  seems,  however, 
under  any  circumstances,  that  if  in  the  description  the 
names  of  the  town,  county,  and  State  are  omitted,  the  gran- 
tee nevertheless  acquires  an  equitable  interest  in  the 
property.^  The  owner  of  a  triangular  piece  of  land  exe- 
cuted a  deed  for  a  portion  of  it,  the  description  fixing  the 
eastern  line  only.  The  deed  recited  the  grantor's  mean- 
ing to  convey  "one-half  of  what  I  now  own"  of  the  tri- 
angle, "said  land  to  be  surveyed,  and  the  bounds  set." 
The  grantor,  however,  before  any  survey  was  made  or 
bounds  set,  conveyed  to  another  party  the  westerly  point 
of  the  triangle,  including  more  than  half  of  it.  The  first 
deed  was  held  void  for  uncertainty.^  A  description  in  a 
deed  of  the  land  conveyed  as  "a  part  of  section  18,  in 
township  7,  of  range  2  east,  containing  one  hundred  and 
eighty  acres,"  is  a  patent  ambiguity.  Parol  evidence  can- 
not explain  or  help  it.^  A  deed  is  void  for  uncertainty 
in  which  the  land  attempted  to  be  conveyed  is  described 
as  "three  fractions  of  lot  7,  J  and  K,  Fourth  and  Fifth 
streets,  Sacramento  City.^     A  description  in  a  deed  and 

being  his  head  right,"  it  is  insufficient,  without  further  identification,  to 
6&OW  that  this  is  the  same  land  patented  to  the  grantor  as  assignee  of 
Xejbomaceno  Kanez:  Harkness  v.  Devine,  73  Tex.  6_'8.  See  Blow  v. 
Yai^'han,  105  N.  O.  198.  A  description  consisting  of  the  words  "a  piece 
or  parcel  of  land  near  Bacon  Quarter  Beach"  is  too  vague  and  indefinite 
to  c|)nvey  any  title:  George  v.  Bates,  90  Va.  839.  See,  also,  Mutual 
Buidding  etc.  Assn.  v.  Wyeth  (Ala.  Jan.  31,  1895),  17  So.  Rep.  45. 

\  Butler  V.  Davis,  5  Neb.  521.     And  see  Long  v.  Wagoner,  47  Mo.  178. 

*  Hoyd  V.  Bunce,  41  Iowa,  660. 

3  Harvey  v.  Byrnes,  107  Mass.  518. 

*  Brown  t;.  Guice,  46  Miss.  299. 

'  Tryon  v.  Huntoon,  67  Cal.  325,  and  cases  cited. 


1403  DESCRIPTION".  §    1012 

mortgage  of  the  land  "as  the  southeast  part  of  the  south- 
east fourth  of  the  northeast  quarter  of  section  36,  town- 
ship 4  south,  and  range  2  east,  containing  thirty-two 
acres,"  was  considered  too  indefinite  to  sustain  a  suit  for 
possession  of  the  land.^  Possession  may  render  certain, 
what  otherwise  would  be  an  uncertain  description.^  If 
the  description  is  so  defective  as  to  render  the  deed  void> 
a  suit  for  a  breach  of  a  covenant  of  seisin  contained  in 
the  deed  cannot  be  maintained  without  showing  a  mis- 
take and  seeking  a  reformation  of  the  deed.' 

§  1012.  What  is  a  sufficient  description. — A  deed  is 
not  void  for  uncertainty  because  there  may  be  errors  or 
an  inconsistency  in  some  of  the  particulars.  If  a  sur- 
veyor, by  applying  the  rules  of  surveying,  can  locate  the 
land,  the  description  is  sufficient.^  And,  generally,  the 
rule  may  be  stated  to  be  that  the  deed  will  be  sustained, 
if  it  is  possible  from  the  whole  description  to  ascertain 

*  Shoemaker  v.  McMonigle,  86  Tnd.  421. 

^  Richards  v.  Snider,  11  Or.  197.  A  description  of  land  as  "one- 
half  of  an  acre  of  land  near  the  wharf  or  at  the  wharf,"  does  not  render 
the  deed  void  for  uncertainty,  if  the  wharf  is  descrihed  and  a  parcel  of 
land  is  surveyed  as  tiie  land  conveyed,  or  the  grantee  takes  possession : 
Simpson  V.  Blaisdell,  85  Me.  199;  35  Am.  St.  Rep.  348. 

'  Gordan  v.  Goodman,  98  Ind.  269.  In  this  case  the  description  was: 
"The  following  described  real  estate,  situate  in  tlie  county  of  Pulaski, 
State  of  Missouri,  to  wit:  And  part  of  the  southeast  quarter  of  section 
25,  commencing  at  the  southwest  corner  of  the  southwest  quarter  of  the 
southeast  quarter  of  said  section,  running  thence  west  to  the  cross  fence, 
between  Berry  Warther  and  Alvis  Goss,  thence  northeast  to  the  half- 
mile  line,  thence  south  with  said  line  to  the  place  of  beginning,  contain- 
ing in  all  one  hundred  and  eighty  acres."  As  the  township  and  range 
were  not  given,  the  location  of  the  land  from  the  description  supplied  by 
the  deed  became  impossible.  It  ia  necessary  that  a  definite  and  certain 
description  of  the  land  to  be  sold  should  be  contained  in  an  order  of  the 
probate  court  for  the  sale  of  the  land  of  a  minor  by  his  guardian.  Refer- 
ence to  documents  not  contained  in  the  order  itself  cannot  help  an  in- 
eufficient  description  in  the  order:  Hill  v.  Wall,  66  Cal.  130. 

*  Pennington  v.  Flock,  93  Ind.  378;  Smiley  v.  Fries.  104  111.  416.  This 
section  is  quoted  with  approval  in  McCuUough  v.  Olds,  108  Cal.  529. 
If  a  description  by  appropriate  evidence  may  be  shown  to  apply  to  the 
land,  the  deed  is  not  void  for  uncertainty  of  description:  Fudickar  v. 
East  Riverside  I.  Dist.,  109  Cal.  41. 


§  1012  DESCRIPTION.  1404 

and  identify  the  land  intended  to  be  conveyed.*  Thus,  a 
deed  was  held  not  to  be  void  for  uncertainty  where  the 
land  convej'-ed  was  described  as  "two  hundred  and  twenty- 
two  and  a  half  acres  off  the  south  and  west  part  of  the 

1  Lyman  w. Loomig,  5  N.  H.  408;  Eg2;leston  v.  Bradford,  10  Ohio,  312; 
Brown  v.  Warren,  16  Nev.  228;  Stanley  v.  Green,  12  Gal.  148;  Smith  v. 
Dean,  15  Neb.  432;  Bailey  v.  Allegheny  Nat.  Bank,  104  Pa.  St.  425 ;  Cole- 
man V.  Manhattan  Beach  Improvement  Go.,  94  N.  Y.  229 ;  Vose  v.  Brad- 
street,  27  Me.  156 ;  Douthit  v.  Robinson,  55  Tex.  69 ;  Mason  v.  White,  11 
Barb.  173;  Brown  v.  Coble,  76  N.  0.  391 ;  Berry  v.  Wright,  14  Tex.  270; 
Farris  v.  Gilbert,  50  Tex.  350 ;  Bosworth  v.  Sturtevant,  2  Gush.  392 ;  War- 
ren tJ.  Makely,  85  N.  0.  12;  Andrews  v.  Pearson,  68  Me.  19;  Spect  «. 
Gregg,  51  Gal.  198;  Andrews  v.  Murphy,  12  Ga.  431 ;  English  v.  Roche,  6 
Ind.  62;  Enochs  v.  Miller,  60  Miss.  19;  Reed  v,  Lammel,  28  Minn.  306; 
Bowles  V.  Beal,  60  Tex.  322;  Hall  v.  Shotwell,  66  Cal.  379;  Peck  v.  Mal- 
lams,  10  N.  Y.  (6  Seld.)  509;  Jackson  v.  Delancy,  11  Johns.  365;  Pipkin 
V.  Allen,  29  Mo.  229;  Harmon  v.  James,  15  Miss.  (7  Smedes  &  M.)  HI; 
45  Am.  Dec.  296;  Neel  v.  Hughes,  10  Gill  &  J.  7  ;  Bird  v.  Bird,  40  Me.  398; 
Middlebury  College  v.  Cheney,  1  Vt.  336;  Barlow  v.  Chicago  etc.  R.  R. 
Co.,  29  Iowa,  276;  Roberts  v.  Grace,  16  Minn.  126;  Conover  v.  Wardell, 
22  N.  J.  Eq.  492;  Everett  v.  Boardman,  58  111.  429;  Morton  v.  Root,  2 
Dill.  312;  Charter  v.  Graham,  56  111.  19;  Alexander  v.  Knox,  6  Saw.  54; 
McLaughlin  v.  Bishop,  35  N.  J.  L.  512;  Cooley  v.  Warren,  53  Mo.  166; 
Shewalter  v.  Pirner,  55  Mo.  218 ;  Bybee  v.  Hageman,  66  111.  519 ;  Sherman 
r.  McCarthy,  57  Cal.  507;  Hoar  v.  Goulding,  116  Mass.  132;  Thayer  v. 
Torrey,  37  N.  J.  L.  339;  Armstrong  v.  Colby,  47  Vt.  359;  Billings  v.  Kan- 
kakee Coal  Co.,  67  111.  489;  Bartlett  v.  Corliss,  63  Me.  287;  Tucker  v. 
Allen,  16  Kan.  312;  Cohen  v.  Woollard,  2  Tenn.  Ch.  686;  Auburn  Con- 
gregational Church  V.  Walker,  124  Mass.  69;  Scheiber  w.  Kaehler,  49  Wis. 
291;  Choteau  v.  Jones,  11  III.  300;  50  Am.  Dec.  460;  Hanley  v.  Black- 
ford, 1  Dana,  1;  25  Am.  Dec.  114;  Cilley  v.  Childs,  73  Me.  130;  Dunn  w. 
Tousey,  80  Ind.  288;  McElhinney  v.  Kraus,  10  Mo.  App.  218;  Bowen  v. 
Galloway,  98  111.  41 ;  Sharp  v.  Thompson,  100  111.  447 ;  39  Am.  Rep.  61 ; 
Wiley  V.  Lovely,  46  Mich.  83;  Whitney  v.  Robinson,  53  Wis.  309;  Irving 
V.  Cunningham,  58  Cal.  306;  Keening  v.  Ayling,  126  Mass.  404;  Paroni 
V.  Ellison,  14  Nev.  60;  Friedman  v.  Nelson,  53  Cal.  589;  Prettyman  v. 
W^alston,  34  111.  175;  Miller  v.  Mann,  55  Vt.  475;  Walsh  v.  Ringer,  2  Ohio, 
327 ;  15  Am.  Dec.  555 ;  Camley  v.  Stanfield,  10  Tex.  546 ;  60  Am.  Dec. 
219;  BuUen  v.  Runnels,  2  N.  H.  255;  9  Am.  Dec.  55.  The  object  of  a 
description  may  be  said  to  be  to  prevent  imposition:  Bates  v.  Bank  of 
Missouri,  15  Mo.  309;  55  Am.  Dec.  145.  See,  also,  as  to  construction  of 
particular  descriptions,  Howard  v.  Pepper,  136  Mass.  28 ;  Mast  v.  Tibbies, 
60  Tex.  301 ;  Bowles  v.  Beal,  60  Tex.  322.  In  a  mortgage  the  land  affected 
was  described  as  being  north  of  the  "ground  of  the  C.  C.  C.  &  I.  R.  R." 
The  court  held  that  the  description  was  not  rendered  void  by  the  use  of 
the  word  "ground  "  instead  of  "  right  of  way  " :  Pence  v.  Armstrong,  95 
Ind.  191. 


1405  DESCRIPTION.  §  1012 

south  half  of  section  24,  T.  1,  R.  7  west,  in  De  Soto 
County."^  And  a  deed  describing  the  land  conveyed  as 
situated  in  a  certain  county  and  school  district,  and 
bounded  by  certain  metes  and  bounds  and  visible  monu- 
ments, but  omitting  to  state  the  section  and  township, 
was  held  not  to  be  void  for  uncertainty."  It  is  not  essen- 
tial to  the  validity  of  a  deed  that  the  description  should 
be  by  boundaries,  courses,  or  distances,  or  by  reference 
to  monuments.  If  the  description  is  general,  the  par- 
ticular subject  matter  to  which  the  description  applies 
may  be  ascertained  by  parol  evidence,  and  the  deed  will 
not  be  held  void  for  uncertainty,  if,  with  the  aid  of  such 
evidence,  the  land  intended  to  be  conveyed  can  be  located. 
Thus,  the  property  intended  to  be  conveyed  was  described 
in  the  deed  as  "  Pelican  beach,  near  Barren  island,  in  the 
town  of  Flatlands."  The  name  "  Pelican  beach"  had 
originally  been  applied  to  the  salt  meadows,  marsh,  and 
beach,  on  the  westerly  end  of  Barren  island.  Subse- 
quently an  inlet  opened  across  the  beach,  and  the  greater 
portion  of  it  was  thereby  separated  from  the  island.  The 
title  of  the  grantee  to  the  beach  was  undisputed,  and  it 
was  held  in  an  action  of  ejectment  that  the  deed  was  not 
void  for  uncertainty,  but  conveyed  the  title  to  that  por- 
tion of  the  beach  cut  off  by  the  inlet.^     The  court  will  uut 

»  Goodbar  v.  Dunn,  61  Miss.  618. 

*  Dorr  V.  School  District,  40  Ark.  237.  Said  the  court,  per  Smith,  J: 
"la  the  description  so  defective  that  it  is  impossible,  by  tlie  aid  of  jMirol 
evidence,  to  locate  the  land?  It  is  in  a  certain  county,  and  in  a  certain 
school  district,  which  has  definite  boundaries,  is  parcel  of  tliu  tnict  ui>on 
which  stood  the  residence  of  Benjamin  I.  Edwards,  contains  throe  acres, 
and  is  descriijed  by  metes  and  bounds,  and  by  visible  monumcMtH,  to  wit, 
the  graveyard,  the  schoolhouse,  the  highway,  corner  stakca,  and  initial 
tree  from  which  to  start.  And  defendant  had  gone  into  iK)»HfH>-i(.n.  A 
competent  surveyor  could  have  found  the  land  witliout  much  dilli<uilty. 
In  conveyancing,  lawyers  commonly  follow  the  syHtcm  of  notation  estab- 
lished by  the  general  government,  distinguishing  lands  according  to  their 
legal  subdivisions.  This  furnishes  a  description  at  once  convtMiient  and 
accurate.  But  it  is  not  necessary  to  mention  the  section,  towiiHliip,  and 
range:  Cooper  v.  White,  30  Ark.  51:5.  When  the  land  lies  in  a  city  or 
town,  the  description  is  usually  by  reference  to  the  lots  and  blocks  of  a 
recorded  plat." 

•  Coleman  v.  Manhattan  Beach  Improvement  Co.,  94  N.  Y.  22Ti.    A 


§  1013  DESCRIPTION.  1406 

resort  to  arbitrary  rules  of  construction,  if,  without  so 
doing,  the  intention  of  the  parties  can  be  ascertained. 
The  deed  and  its  descriptive  clauses  will  be  construed  as 
any  other  contract  would  be.'  Wlien  a  doubtful  descrip- 
tion is  to  be  construed,  the  court  should  endeavor  to  as- 
sume the  position  of  the  parties,  the  circumstances  of  the 
transaction  should  be  carefully  considered,  and  in  the 
light  of  those  circumstances,  the  words  should  be  read 
and  interpreted.^ 

§  1013.  Illustrations. — A  grantor  described  land  con- 
veyed as  "my  homestead  farm  situated  in  said  Buckfield," 
and  described  the  various  parcels  of  which  it  was  composed, 
and  gave  as  a  description  of  the  last  parcel  "  twelve  and  a 
half  acres  out  of  lot  numbered  eight  in  the  first  range." 
It  was  held  that  the  whole  parcel  passed,  notwithstanding 
it  contained  twenty-five  acres.^  A  description  is  suffi- 
ciently definite  if  it  gives  the  corner  of  a  certain  lot  as 
the  beginning,  and  courses  and  distances  from  this,  with 
metes  and  bounds.^  A  description  in  a  deed  of,  "all 
lands  and  real  estate  belonging  to  the  said  party  of  the 
first  part,  wherever    the  same  may  be  situated,"  is  suffi- 

sheriff' s  deed  to  a  lot  in  a  city  describing  it  as  "part  of  lot  17,  fronting  on 
Gallatin  street  fifty  feet,  extending  eastwardly  seventy-three  feet,  as  the 
property  of  said  Isaac  Jamison,"  was  held  not  to  be  void  on  its  face  for 
uncertainty,  for  it  might  be  shown  by  parol  evidence  that  the  extent  of 
the  frontage  of  the  lot  on  Gallatin  street  was  only  fifty  feet ;  or  that 
Jamison,  when  the  deed  was  executed,  was  the  owner  of  a  defined  part 
of  the  lot  fronting  on  such  street  measuring  fifty  feet,  and  known  "as  the 
property  of  said  Isaac  Jamison."  But  when  it  is  shown  by  extrinsic 
proof  that* the  frontage  of  lot  17  on  Gallatin  street  was  about  one  hundred 
and  forty-seven  feet,  all  of  which  had  been  conveyed  to  Jamison  except 
about  twenty-five  feet,  and  it  is  not  shown  that  any  part  of  this  had  been 
disposed  of  by  Jamison  at  the  time  of  the  execution  of  the  deed,  and  it  is 
aot  shown  that  the  fifty  feet  front  had  ever  been  separated  from  the 
other,  or  that  there  was  any  identification  of  any  fifty  feet  known  "as 
ihe  property  of  said  Isaac  Jamison,"  the  deed  on  account  of  the  insufli- 
2ient  identification  of  the  property  is  void  for  uncertainty:  Bernstein  v. 
Humes,  71  Ala.  260. 

»  Kimball  v.  Semple.  25  Cal.  440. 

»  Truett  V.  Adams,  66  Cal.  218. 

•  Andrews  v,  Pearson,  68  Me.  19. 

*  Meikel  v.  Greene,  94  Ind.  344. 


1^^"^  DESCRIPTION.  g  1013 

cient  to  pass  any  land  belonging  to  the  grantor  at  the 
time  of  the  execution  of  the  deed.^  A  deed  for  "  one- 
half  of  my  lot,"  when  it  is  shown  by  extrinsic  evidence 
that  the  grantor  owned  but  one  lot  at  the  time  in  the  place, 
is  not  void  for  vagueness  or  uncertainty  of  description.' 
The  grantee  takes  as  a  tenant  in  common  of  an  undivided 
one-half  of  the  lot.^  Where  land  was  situated  in  the 
bend  of  a  river,  it  was  held  that  a  description  in  which 
one  of  the  lines  was  described  as  running  "  nearly  due 
west  along  the  top  or  brow  of  the  bluff  on  the  south  side 
of  said  river,"  was  sufficiently  definite  and  certain.'  A 
deed  in  which  the  land  is  described  as  "  beginnino-  at  a  ser- 
visberry  corner,  thence  north  to  a  white  oak,  thence  east 
to  a  white  oak,  thence  south  to  limestone  quarry,  thence 
to  a  white  oak,"  when  accompanied  by  a  transfer  of 
possession,  and  when  it  is  shown  that  the  trees  are 
marked,  is  sufficient  to  pass  the  title,  although  no 
mention  is  made  of  the  locality  of  the  land.*  In  Ohio,  it 
has  been  held  that  a  description  of  land  as  "seventy  acres 
lying  and  being  in  the  southwest  corner "  of  a  certain 
section,  is  sufficiently  definite,  and  that  the  land  conveyed 
will  lie  in  a  square.^  In  a  deed  conveying  several  par- 
cels of  land  the  description  was:  "The  following  tracts  or 
parcels  of  land,  all  of  which  lying  and  being  in  tlie  mili- 
tary tract  in  the  State  of  Illinois,  that  is  to  say,  the  north- 
west i,  section  27,  11  S.,  2  W.,"  wiiii  several  other  tracts 

*  Pettigreww.  Dobbelaar,  63  Cal.  396.  Ami  see  Browu  i;.  Wurrun,  10 
Nev.  228. 

»  Lick  V.  O'Donnell,  3  Cal.  59 ;  58  Am.  Dec.  383. 

*  Smith  V.  Dean,  15  Neb.  432. 

*  Banks  v.  Ammon,  27  Pa.  St.  172. 

*  Walsh  V.  Ringer,  2  Ohio,  327;  15  Am.  Der.  555.  Paid  the  court: 
"The  general  position  of  tlie  land  conveyed  ia  given  witii  Hudicimt  cer- 
tainty. It  is  in  the  southwest  corner.  According  to  the  ruU'H  of 
decision,  both  in  this  State  and  in  Kentucky,  tiiat  corner  iH  a  luiHt-  |.(iint 
from  which  two  sides  of  the  land  conveyed  sliall  extend  on  ecjual  dis- 
tance, BO  as  to  include  by  parallel  lines  the  quantity  conveyed.  From 
this  point  the  section  lines  extend  north  and  east  so  as  to  fix  the  boundary 
west  and  south,  the  east  and  north  lioundaries  only  arc  to  be  oHtJiMlHlied 
by  construction,  and  the  rule  referred  to  yivoa  thuiu  with  Buflicieut  cer- 
tainty " 


§  1013  DESCRirxioN.  1408 

with  the  word  "section"  omitted.  It  was  held  that  the 
word  "section"  would  be  understood,  and  hence  that  the 
description  of  the  other  tracts  was  sufficient/  A  descrip- 
tion of  the  land  conveyed  as,  "all  my  right,  title,  and  in- 
terest in  and  to  a  parcel  of  land  situate  in  the  town  of 
San  Francisco,  being  block  No.  9,  the  same  on  which  I 
now  reside.  The  part  thus  donated  commences  at  the 
northeast  corner  of  said  block,  running  twenty-five  varas 
west  from  said  corner,  thence  back  one  hundred  varas" 
— is  sufficient  to  sustain  the  deed.  The  land  thereby  con- 
veyed would  be  a  strip  off  the  easterly  side  of  the  block, 
which  in  width  would  be  twenty-five  varas,  and  in  depth 
one  hundred  varas. ^  Although  there  may  be  a  deflection 
of  twenty-five  degrees  from  the  cardinal  points  of  the 
compass  in  the  lines  of  a  lot,  a  description  of  the  land  con- 
veyed as  the  "north  twenty  feet"  of  such  lot  is  sufficiently 
defined.^  A  deed  in  which  the  land  to  be  conveyed  was  de- 
scribed as  "commencing  at  the  southeast  corner  of  section 
21,  township  84,  range  26,"  was  held  to  be  sufficient,  not- 
withstanding that  the  deed  did  not  mention  the  county  and 
State  in  which  the  land  was  situated,  it  appearing  that  the 
township  and  range  specified  were  nowhere  else  than  in 
the  county  and  State  in  which  the  land  was  claimed  to 
lie.*  A  deed  is  sufficient  so  far  as  certainty  of  description 
is  concerned,  if  it  states  the  name  of  the  tract  and  county, 
and  refers  to  deeds  of  record  clearly  describing  the  land 
for  a  more  specific  description.^  Where  the  description  is 
uncertain,  reference  may  be  made  to  prior  deeds  convey- 
ing the  same  land.^    If  the  description  is  "the  north  half  of 

^  Bowen  v.  Prout,  52  III.  354. 

*  Le  Levillain  v.  Evans,  39  Cal.  120.  See  Banks  v.  Moreno,  39  Cal. 
233. 

*  Jenkins  v.  Sharpf,  27  Wis.  472. 

*  Beal  V.  Blair,  33  Iowa,  318. 

*  Steinbeck  v.  Stone,  53  Tex.  382.  See,  also,  Knowles  v.  Torbitt,  53 
ToK.  557. 

®  Bowman  v.  Wettig,  39  111.  416.  Where  land  is  described  in  general 
iewns,  and  also  as  all  the  lands  of  the  grantors  and  each  of  them,  the 
description  can  be  made  certain  by  proof,  and  is  sufficient :  Harvey  v. 
Edens,  69  Tex.  420;  6  S.  W.  Rep.  306.     The  following  description  is  not 


1409  DESCRIPTION.  g  1013 

the  southwest  quarter  the  southwest  quarter,"  of  a  certain 
section,  the  deed  will  convey  the  north  half  of  the  south- 
west quarter  of  the  southwest  quarter  of  the  section,  where 

void  for  uncertainty:  "All  the  lands  conta'ned  in  Patent  No.  383,  vol. 
15,  first  class,  to  me  granted  by  the  State  of  Texas,  and  that  have  not 
been  legally  sold  or  disposed  of  for  location,  the  above  lands  being  situ- 
ate and  lying  in  the  county  of  W.,  and  fully  described  in  a  patent  which 
accompanies  this  deed:  Falls  Land  and  Cattle  Co.  v.  Chisholm,  71  Tex. 
523 ;  9  S.  W.  Rep.  479.  A  sheriff's  deed  giving  accurately  only  one  boun- 
dary line,  but  describing  the  land  by  name  and  features  familiar  in  that 
neighborhood,  is  not  void  for  uncertainty  where  it  clearly  appears  that  it 
is  well  known  by  that  name,  and  has,  in  previous  conveyances,  been  de- 
scribed by  it,  and  a  surveyor  who  surveyed  the  tract  previously  easily 
found  the  land  with  the  sheriff's  deed  before  him :  Hammond  v.  Johnston, 
93  Mo.  198;  6  S.  W.  Eep.  83;  Hammond  v.  Gordon,  93  Mo.  223;  Ham- 
mond V.  Horton,  6  S.  W.  Rep.  94  (Mo.  Nov.  28,  1887).  See,  also,  Wolfe 
V.  Dyer,  95  Mo.  545;  8  S.  W.  Rep.  551,  A  deed  which  did  not  state  the 
State  in  which  the  land  was  situated  was  held  not  to  be  void  for  uncer- 
tainty: Calton  V.  Lewis,  119  Ind.  181;  21  N.  E.  Rep.  475.  Tlie  words 
"quarter  of"  preceding  the  word  "section"  maybe  supplied  by  construc- 
tion as  a  palpable  omission:  Campbell  v.  Carruth,  32  Fla.  264.  See, 
also,  Smith  v.  Nelson,  110  Mo.  552;  Bryan  v.  Wisner,  44  La.  Ann.  832; 
Slack  V.  Dawes,  3  Tex.  Civ.  App.  520;  22  S.  W.  Rep.  1053;  Johnson  v. 
Williams,  67  Hun,  652.  Where  the  land  described  is  "all  those  parcels 
of  land  sold  to"  the  grantor  by  a  third  person,  and  such  person  had 
agreed  to  sell  more  land  than  he  actually  conveyed  to  tlie  grantor,  parol 
evidence  may  be  received  for  the  purpose  of  explaining  whether  the  deed 
conveyed  the  land  described  in  the  agreement  or  only  that  actually  con- 
veyed by  such  person:  Bradish  v.  Yocum,  130  III.  386.  The  fourth  side 
of  a  rectangle  may  be  supplied  where  the  intent  of  the  parties  is  clear, 
and  the  grantee  has  entered  into  possession  of  the  rectangular  tract  with 
the  grantor's  consent:  Ray  v.  Pease,  95  Ga,  153;  22  S.  E.  Kup.  190. 
AVhere  it  appears  from  the  description  that  the  shape  of  the  land  in  tri- 
angular, if  the  quantity  of  land  and  the  angle  between  two  of  the  linca 
are  given,  the  description  is  sufficient:  Wells  v.  Hedflenberg  (Tex.  Civ. 
App.),  30  S.  W.  Rep.  702.  A  deed  is  not  void  for  uncertainty  whore  a 
right  of  way  is  conveyed  described  as  a  strip  one  luindred  feet  wide,  of 
which  the  center  line  of  the  route  of  the  railroad  company  to  whom  the 
deed  is  made,  as  "now  surveyed,  staked,  and  located,  is  the  wnter  lino 
of  said  route,"  over  certain  land  which  is  specilically  described  :  Denver 
M.  &  A.  Ry.  Co.  V.  Lockvvood,  54  Kan.  586.  See,  also,  ThonipHon  ».  South- 
ern Cal.  M.  R.  Co.,  82  Cal.  497,  Where  land  is  dcHcrilx-d  iv*  one  hundred 
and  thirty-four  acres  on  the  north  si.le  of  a  lot  of  land  made  by  statuto, 
a  square,  described  by  its  number,  district,  and  county,  the  d.'Hcription 
will  embrace  such  a  parallelogram  as  would  result  from  .IrawiUK  a  Ime 
across  aline  running  parallel  with  its  northern  Ixjundary,  *o  a»  to  cut  ..ff 
one  hundred  and  thirty-four  acres :  Gresj^  Lumber  Co.  t;.  Coody,  94  <  .a.  519. 
Although  the  field  fiotes  as  described  in  a  deed  show  a  miutake  bccaiwo 
i»EED3,  Vol.  II.  —  S'J 


§   1013  DESCRIPTION.  1410 

the  call  for  quantity  supports  such  a  construction.*  If  the 
description  uses  the  term  "  half,"  this  is  not  to  be  taken 
in  its  literal  sense,  if  a  different  meaning  is  indicated  by 
the  context,  by  concomitant  circumstances,  or  by  subse- 
quent acts  of  the  parties.^     A  description  designating  a 

they  do  not  close,  yet  the  instrument  is  admissible  in  evidence  when  it 
appears  from  the  deed  that  the  scrivener  in  copying  the  field  notes,  mis- 
took the  character  used  to  denote  degrees  for  a  cipher :  Coffee  v.  Hen- 
dricks, 66  Tex.  676.  A  deed  is  not  void  for  uncertainty  where  the 
description  is  so  many  acres  to  be  taken  from  a  larger  tract  at  the  selec- 
tion of  the  grantee :  Dohoney  v.  Womack,  1  Tex.  Civ.  App.  354.  Nor  is 
a  deed  void  where  an  uncertainty  as  to  the  identity  of  the  land  described 
can  be  explained  by  extrinsic  evidence :  McWhirter  v.  Allen,  1  Tex.  Civ. 
App.  649. 

1  Burnett  v.  McOluey,  78  Mo.  675. 

^  Jones  V.  Pashby,  48  Mich.  634.     For  cases  in  which  particular  de- 
scriptions have  on  various  points  been  construed,  see  Kirch  v.  Da  vies,  55 
Wis.  287;  Piatt  v.  Jones,  43  Cal.  219;  Winslow  v.  Cooper,  104  111.  235; 
Fratt  V.  Woodward,  32  Cal.  219;  91  Am.  Dec.  573;  Dwight  v.  Packard,  49 
Mich.  614 ;  Farley  v.  Deslonde,  58  Tex.  588 ;  Altschul  v.  San  Francisco  etc. 
Assn.,  43  Cal.  171;  Smiley  v.  Fries,  104  111.  416;  Cox  v.  Hayes,  64  Cal. 
32;  Atchison,  Topeka  etc.  R.  R.  Co.  v.  Patch,  28  Kan.  470;  Santa  Clara 
Mining  Assn.  v.  Quicksilver  Mining  Co.,  8  Saw.  330;  17  Fed.  Rep.  657; 
Small  t;.  Wright,  74  Me.  428;  Armstrong  v.  Dubois,  90N.  Y.  95;  Park- 
inson V.  McQuaid,  54  Wis.  473;  Hatch  v.  Brier,  71  Me.  542;  Avery  t;. 
Empire  Woolen  Co.,  82  N.  Y.  582;  Cunninghams.  Webb,  69  Me.  92; 
Hathorn  v.  Hinds,  69  Me.  326;  Montgomery  v.  Reed,  69  Me.  510;  Jewett 
v.  Hussey,  70  Me.  433;  Ames  v.  Hilton,  70  Me.  36;  Snow  v.  Orleans,  126 
Mass.  453;  Herrick  v.  Ammerman,  32  Minn.  544;  Hampton  v.  Helms,  81 
Mo.  631 ;  Irwin  v.  Towne,  42  Cal.  326 ;  Garwood  v.  Hastings,  38  Cal.  216 ; 
De  Levillain  v.  Evans,  39  Cal.  120 ;  Mayo  v.  Mazeaux,  38  Cal.  442 ;  Lake 
Vineyard  Land  and  Water  Assn.  v.  The  San  Gabriel  etc.  Assn.,  58  Cal, 
51;  Persinger  v.  Jubb,  52  Mich.  304;  Frost  v.  Angier,  127  Mass.  212; 
White  V.  Gay,  9  N.  H.  127;  31  Am.  Dec.  224;  Melvin  v.  Proprietors  of 
Locks,  etc.,  5  Met.  15;  38  Am.  Dec.  384;  Kirkland  v.  Way,  3  Rich.  4; 
45  Am.  Dec.  752;  Gourdin  v.  Davis,  2  Rich.  481;  45  Am.  Dec.  745;  Pat- 
terson V.  Trask,  30  Me.  28;  50  Am.  Dec.  610;  Dow  v.  Jewell,  18  N.  H. 
340;  45  Am.  Dec.  371.     In  a  deed  one  call  from  a  bound  specified  by 
courses  and  distances,  was  "to  the  road,"  etc.     The  next  call  then  pro- 
ceeded "in  said  road,"  etc.     It  was  held  that  the  first  call  was  ambigu- 
ous, it  not  appearing  as  to  what  point  in  the  road  the  first  call  ran  to,  or 
whether  it  only  ran  to  the  road,  and  this  was  a  question  for  the  jury: 
Ames  V.  Hilton,  70-  Me,  36.     Where  the  calls  were,   "thence  by  the 
road  to  A's  land,  thence  southerly  by  said  A's  land  to  B's  land,"  it  was 
held  in  a  real  action  that  by  "A's  land"  was  meant  land  owned  by  him, 
not  land  possessed  by  him,  especially  as  by  giving  this  construction  to 
the  language,  exactly  the  amount  of  land  to  which  the  grantor  had  title 
would  be  conveyed :  Jewett  v.  Hussey.  70  Me.  433, 


^411  DESCRIPTION.  §   1013 

tract  of  land  as  "ten  acres  off  the  northwest  corner  of  said 
quarter  section,"  is  not  indefinite  and  uncertain.  Such  a 
description  means  ten  acres  in  the  corner  lying  in  a 
square,  and  bounded  by  four  equal  sides.  If,  however, 
the  only  words  of  description  are  "ten  acres  more  or  less 
of  said  quarter  section,"  the  description  is  so  uncertain 
as  to  render  the  description  void.^  A  deed  is  void  for 
uncertainty  where  the  starting  point  is  given  as  "com- 
mencing at  the  N.  W.  of  the  N.  W.,  S.  E.  of  section  19."- 
So  a  description,  the  "  S.  i  of  the  N.  E.  i  of  S.  E.  i  "  of 
a  section  is  fatally  defective.  There  cannot  be  a  south- 
east half  of  a  section.  If  the  word  "quarter"  was  used, 
making  the  description  the  "S.  i  of  the  N.  E.  i  of  S.  E. 
i"  of  the  section,  the  description  would  be  good.*  If  one 
of  the  boundaries  is  described  as  a  line  commencing  a 
certain  distance  below  the  mouth  of  a  creek,  and  to  run 
at  right  angles  with  the  creek,  the  deed,  in  the  absence  of 
anything  on  its  face  to  indicate  that  tiie  creek  does  not 
run  in  a  course  perfectly  straight,  or  that  a  straight  lino 
drawn  along  the  thread  of  the  stream  would  fail  to  inter- 
sect the  beginning  point  of  the  contested  line,  is  not  void 
for  uncertainty  on  its  face  with  respect  to  such  line.* 
Where  the  land  is  described  as  "Lot  No.  62,  containing 
50  52-100  acres,  situate  in  the  town  and  county  of  Santa 
Barbara,  State  of  California,  and  numbered  and  marked 
on  the  official  map  or  plan  of  outside  lands  of  the  town 
of  Santa  Barbara,  made  by  William  Norway,  Surveyor,'' 
the  court  cannot  say,  as  a  matter  of  law,  that  the  deed  is 
void  for  uncertainty  in  the  description.^  An  entire  tract 
known  by  a  general  name  may  be  described  by  such  name. 
The  same  principle  applies  where  a  tract  designated  by 
a  general  name  is  excepted  from  a  grant  by  motes  and 

*  Wilkinson  v.  Roper,  74  Ala.  140. 
»  Pry  V.  Pry,  109  111.  460. 

»  Pry  V.  Pry,  109  111.  466. 

*  Irwin  V.  Towne,  42  Cal.  326.    See  Hicks  v.  Colcmftn,  25  Cal.  122;  85 
Am.  Dec.  103. 

*  Thompson  v.  Thompson,  52  Cal.  154.     Sec,  also,  Moyors  v.  Fnr<|ulittr- 
Bon,  46  Cal.  191,  as  to  description  in  a  bill  of  sale  of  a  uiiuiny  cluiiu. 


§  1014  DESCRIPTION.  1412 

bounds.  The  excepted  tract  so  described  does  not  pass 
by  the  deed.^  A  deed  is  not  void  for  uncertainty  of  de- 
scription in  which  the  land  conveyed  is  described  as  "all 
the  right,  title,  interest,  and  demand  which  the  grantor 
has  or  ought  to  have  in  and  to  all  those  lots  and  parcels 
of  land  lying  in  the  town  of  Silverton,  which  remained 
undivided  amongst  the  proprietors  of  said  townsite,  upon 
delivery  of  deeds  by  the  trustee  of  said  townsite  to  the 
said  proprietors,  the  same  being  one-twelfth  undivided  in- 
terest in  said  undivided  lots."^ 

§   1014.     Land  of  reputed  owner  as  boundary. — If  the 

boundaries  are  given  as  the  lands  of  others,  the  descrip- 
tion may  be  sufficient,  although  the  true  names  of  the 
owners  are  not  given,  if  the  boundaries  can  otherwise  be 
sufficiently  identified.  Thus  the  land  conveyed  in  a  deed 
was  described  as  "  bounded  on  the  north  by  the  land  of 
Joseph  C.  Palmer."  The  fact  was  that  Palmer  did  not 
own  the  land  on  the  north,  but  the  grantor  had  always 

^  Truett  V.  Adams,  66  Cal.  218.  Where  in  one  deed  land  was  de- 
scribed as  "  Gift  Map  No,  2,  lots  No.  398  to  405  inclusive,"  and  in  a 
second  deed  executed  in  Illinois,  the  description  was,  "all  lands  and 
real  estate  belonging  to  the  said  party  of  the  first  part  wherever  the 
eame  may  be  situated,"  the  court  held  that  the  first  description  was  suf- 
ficient if  there  was  a  map  in  San  Francisco  known  as  "  Gift  Map  No.  2," 
and  that  if  the  lands  in  controversy  were  owned  by  the  grantor  named 
in  the  second  deed  they  passed  by  it :  Pettigrew  v.  Dobbelaar,  63  Cal. 
396.  See  Penry  v.  Richards,  52  Cal,  496;  Lick  v.  O'Donnell,  3  Cal.  59; 
58  Am.  Dec.  383.  As  to  certainty  of  description  required  in  a  decree  of 
foreclosure,  see  Crosby  v.  Dowd,  61  Cal.  558.  A,  who  owned  an  undi- 
vided tenth  part  of  a  tract  of  land,  executed  a  deed  to  B,  describing  the 
land  conveyed  as  "  all  of  the  grantor's  right,  title,  and  interest  in  the 
following  described  property,  viz :  One-half  interest  in  that  right,  title, 
and  interest  of  the  party  of  the  first  part  in  and  to  an  undivided  one- 
tenth  part  of  that  certain  tract  or  parcel  of  land,"  etc.  B,  the  grantee, 
subsequently  executed  a  deed  to  C,  conveying  "  all  his  right,  title,  inter- 
est, etc.,  in  the  following  property,  to  wit:  One-half  interest  in  that 
right,  title,  and  interest  of  the  party  of  the  first  part  in  and  to  an  un- 
divided one-tenth  part  of  that  certain  tract  or  parcel  of  land,"  etc. 
The  court  held  that  by  the  latter  deed  only  an  undivided  half-interest 
of  B,  that  is,  an  undivided  one-fortieth  of  the  land,  passed  to  C :  Hayes 
V.  Wetherbee,  60  Cal.  396. 

1  Blair  v.  Burns,  8  West  C.  Eep.  285. 


1413  DESCRIPTION.  §  1015, 1015  a 

recognized  such  land  as  belonging  to  him  for  the  reason 
that  he  had  been  the  agent  who  purchased  it  for  another 
The  court  held  that  the  northern  boundary  was  sufficiently 
identified/ 

§   1015.      General    description    and    unrecorded   deed. 

Where  a  grantor  executes  a  deed  of  all  his  real  estate 
without  description,  the  grantee  obtains  only  such  pro|>- 
erty  as  is  vested  in  the  grantor  by  a  legal  title.  Property 
conveyed  by  an  unrecorded  deed,  of  which  the  grantee 
was  ignorant,  does  not,  by  a  deed  in  wliich  the  description 
is  thus  general,  pass  to  him.^ 

§  1015  a.  Situation  and  condition  shown  by  parol 
evidence.  — The  meaning  that  the  parties  attached  to 
the  language  employed,  especially  in  matters  of  descrip- 
tion,  may  be  shown  by  parol  evidence  relating  to  the 
situation  and  condition  of  the  subject  matter.  The 
deed  should  be  given  a  favorable  construction,  and  one 
as  near  the  meaning  and  intention  of  the  parties  as  the 
rules  of  law  will  allow.^  A  deed  conveying  all  the  lands 
of  the  grantor  is  not  void  for  uncertainty  of  description, 
and  passes  the  title  to  all  land  in  which  he  has  an  in- 
terest. Nor  does  the  fact  that  the  description  excepts 
from  the  operation  of  the  deed  all  property  of  the  grantor 
exempt  from  execution  render  the  conveyance  void  for 
uncertainty  in  description,  as  that  is  certain  which  may 
be  made  certain.*  The  declarations  of  the  grantor  sub- 
sequently made  relating  to  the  boundaries  of  the  land 
conveyed  are  admissible  in  evidence  against  those  ch\iin- 
ing  title  under  him.''  But  declarations  by  a  fornior  owiht, 
under  whom  a  person  claims,  made  forty  years  before  the 
sommencement  of  a  suit  to  recover  a  strip  of  land  bounded 

1  McKeon  v.  Millard,  47  Cal.  581. 

'  Jamaica  etc.  Corp.  v.  Cliandler,  9  AUon,  159. 

»  Lego  V.  Medley,  79  Wis.  211;  24  Am.  St.  liop.  706;  Lymnn  v.  Hnb- 
cock,  40  Wis.  512;  Dunn  v.  Entjlish,  23  N.  J.  L.  120;  Cravens  v.  White,  73 
Tex.  577;  15  Am.  St.  Rep.  803. 

*  McCuUoh  V.  Price,  14  Mont.  320;  43  Am.  .St.  Kcp.  a37. 

»  Simpson  v.  Blaisdell,  85  Me.  199;  35  Am.  St.  Kop.  348. 


§   1016  DESCRIPTION.  1414 

by  a  river,  are  inadmissible  to  show  that  the  river  has 
changed  its  bed.^  But  the  rule  is  well  established  that  in 
case  of  a  disputed  boundary  line  which  is  in  doubt,  the 
declarations  of  the  grantor,  made  at  and  before  the  exe- 
cution of  the  deed,  as  to  the  location  of  the  boundary  line, 
may  be  received  in  evidence  against  him  and  those  who 
claim  under  him.^  Parol  evidence  may  be  received  to  fix 
boundaries  by  showing  that  when  the  grantor,  in  deliver- 
ing the  deed,  pointed  out  stakes,  and  said  the  land  con- 
veyed lay  between  them,  and  that  afterward  the  grantor 
and  grantee  erected  fences  inclosing  the  land  between  the 
stakes.' 

§  1016.  Surplusag-e. — The  deed  will  not  be  void  for 
uncertainty  from  the  fact  that  the  description  in  part  is 
false  or  incorrect,  if  there  are  sufficient  particulars  given 
to  enable  the  premises  intended  to  be  conveyed  to  be 
identified.  Thus,  where  a  lot  is  described  by  its  number 
on  a  recorded  plat,  which  in  itself  is  a  sufficient  descrip- 
tion, but  there  is  a  misdescription  in  a  boundary  line, 
such  misdescription  will  be  rejected.*    In  a  deed  the  land 

1  Taylor  v.  Glenn,  29  S.  C.  292;  13  Am.  St.  Rep.  724. 

^  Sharp  V.  Blankenship,  79  Cal.  411 ;  McFadden  v.  Ellmaker,  52  Cal. 
849;  Stanley  v.  Green,  12  Cal.  148;  McFadden  v.  Wallace,  38  Oal.  51. 

^  Hooten  v.  Comerford,  152  Mass.  591 ;  23  Am.  St.  Rep.  861.  See,  also, 
Lovejoy  v.  Lovett,  124  Mass.  270;  Dodd  v.  Witt,  139  Mass.  63;  52  Am. 
Rep.  700;  Reed  v.  Proprietors  of  Locks  and  Canals,  8  How.  274;  Miles  v. 
Barrows,  122  Mass.  579.  Where  the  deed  described  the  land  conveyed 
as  "parts"  of  certain  lots,  without  stating  what  parts,  it  may  be  shown 
by  parol  evidence  what  land  was  intended  to  be  conveyed.  The  am- 
biguity may  be  explained:  Shore  v.  Miller,  80  Ga.  93;  12  Am.  St.  Rep. 
239.  See,  also,  Bonaparte  v.  Carter,  106  N.  C.  534 ;  Houston  v.  Bryan,  78 
Ga.  181 ;  6  Am.  St.  Rep.  252. 

*  Union  Railway  &  Transit  Co.  v.  Skinner,  9  Mo.  App.  189 ;  Thompson 
V.  Ela,  60  N.  H.  562;  Husbands  v.  Stemple,  13  Mo.  App.  589;  Reamer  v. 
Nesmith,  34  Cal.  624;  Irving  v.  Cunningham,  66  Cal.  15;  Beaumont  v. 
Field,  1  Barn.  &  Aid.  247 ;  Norwood  v.  Byrd,  1  Rich.  135 ;  42  Am.  Dec.  406 ; 
Clark  V.  Munyan,  22  Pick.  410;  33  Am.  Dec.  752;  White  v.  Gay,  9  N.  H. 
126 ;  31  Am.  Dec.  224 ;  Morton  v.  Jackson,  1  Smedes  &  M.  494 ;  40  Am.  Dec. 
107.  See,  also,  Shewalter  v.  Pirner,  55  Mo.  218 ;  Cooley  v.  Warren,  53 
Mo.  166;  Seaman  v.  Hogeboom,  21  Barb.  398;  Hobbs  v.  Payson,  85  Me. 
498;  27  Atl.  Rep.  519;  Sink  v.  McManus,  49  Hun,  583;  Maker  v.  Lazell, 
83  Me.  562;  23  Am.  St.  Rep.  795;  22  Atl.  Rep.  474;  Arambula  v.  Sulli- 


1415  DESCRIPTION.  g  101 G 

was  described  as  lot  77  of  the  original  plat  of  the  to\\'n  as 
recorded,  but  the  original  plat  did  not  contain  over  twentv- 
nine  lots,  and  another  plat,  which,  on  account  of  defects 

van,  80  Tex.  615;  16  S.W.Rep.  436;  Barnard  r.Good,  44  Tex.  6:?S;  Cof- 
fey V.  Hendricks,  66  Tex.  676;  Kingston  v.  Pickens,  46  Tex.  99;  Oliver 
V.  Mahoney,  61  Tex.  610;  Smith  v.  Chatham,  14  Tex.  322;  Bir'dseye  v. 
Rogers  (Tex.  Civ.  App.),  26  S.  W.  Rep.  841;  Peterson  v.  Ward,  5  Tex. 
Civ.  App.  208;  23  S.  W.  Rep.  637;  Minor  r.  Powers  (Tex.  Civ'.  App.), 
24  S.  W.  Rep.  710;  Sherwood  v.  "Whiting,  54  Conn.  330;  1  Am.  St.  Rep. 
116;  Evans  v.  Greene,  21  Mo.  170;  Gibson  v.  Bogy,  28  Mo.  47S;  Ruther- 
ford V.  Tracy,  48  Mo.  32o;  8  Am.  Rep.  104;  Jamison  v.  Fopiano,  48  Mo. 
194;  West  v.  Bretelle,  115  Mo.  653;  22  S.  W.  Rep.  705;  Bray  v.  Adams. 
114  Mo.  486;  21  S.  W.  Rep.  853;  Johnson  v.  Simpson,  36  N.  H.  91 ;  Har- 
vey V.  Mitchell,  31  N.  H.  475 ;  Eastman  v.  Knight,  35  N.  H.  551 ;  Benton 
V.  Mclntyre,  64  N.  H.  598;  15  Ath  Rep.  413;  DriscoU  v.  Green,  59  N.  H. 
101 ;  Elliott  V.  Thatcher,  2  Met.  44;  Worthington  v.  Hylyer,  4  Mass.  196; 
Melvin  v.  Proprietors  of  Locks  and  Canals,  5  Met.  15 ;  38  Am.  Dec.  384 ; 
Bond  V.  Fay,  12  Allen,  86;  Bosworth  v.  Sturtevant,  2  Cush.  392;  Hast- 
ings V.  Hastings,  110  Mass.  280;  Morse  v.  Rogers,  118  Mass.  573-578; 
Love  joy  v.  Lovett,  124  Mass.  270;  Morse  tJ.  Rogers,  118  Mass.  572;  Au- 
burn Cong.  Church  f.  Walker,  124  Mass.  69;  Cassidy  v.  Charlestown  Say. 
Bank,  149  Mass.  325;  21  N.  E.  Rep.  372;  Thompson  v.  Jones,  4  Wis.  106; 
Green  Bay  v.  Hewitt,  55  Wis.  96;  42  Am.  Rep.  701;  12  N.  W.  Rep.  382; 
Lochte  V.  Austin,  69  Miss.  271;  13  So.  Rep.  838;  Miller  t>.  Travers,  8 
Bing.  244;  Winnipisiogee  Paper  Co.  v.  N.  H.  Land  Co.,  59  Fed.  Rep. 
542;  Hamm  v.  San  Francisco,  17  Fed.  Rep.  119;  Wade  v.  Deray,  50  Cal. 
376;  Wilcoxson  v.  Sprague,  51  Cal.  640;  Reed  v.  Spicer,  27  Cal.  57;  Jack- 
eon  V.  Clark,  7  Johns.  217;  Baldwin  v.  Brown,  16  N.  Y.  359;  Jackson  v. 
Barringer,  15  Johns.  471;  Loomis  v.  Jackson,  19  Johns.  449;  Schoene- 
wald  V.  Rosenstein,  25  N.  Y.  St.  Rep.  964;  5  N.  Y.  Supp.  7t)6;  Robinson 
V.  Kime,  70  N.  Y.  147;  Case  v.  Dexter,  106  N.  Y.  548;  Muldoon  v.  Deline, 
135  N.  Y.  150;  Danziger  v.  Boyd,  21  J.  &  S.  398;  Llewellyn  v.  Earl  of 
Jersey,  11  M.  &  W.  183;  Duncan  v.  Madard,  106  Pa.  St.  562;  Wiley  v. 
Lovely,  46  Mich.  83;  8  N.  W.  Rep.  716;  Wilt  v.  Cutler,  38  Mich.  189; 
Lodge  V.  Lee,  6  Cranch,  237;  Land  Go.  v.  Saunders,  103  U.  S.  316;  Jack- 
son V.  Sprague,  1  Paine,  494;  Prentice  v.  Stearns,  113  U.  S.  435;  Wiiite 
V.  Herman,  51  111.  243;  99  Am.  Dec.  543;  Kruse  v.  Wilson,  79  III.  233; 
Myers  v.  Ladd,  20  III.  415;  Holston  v.  Needles,  115  111.  461 ;  6  N.  E.  Hep. 
530;  Stevens  v.  Wait,  112  III.  544;  Bowen  v.  Allen,  113  III.  53;  55  Am. 
Rep.  398;  Clements  v.  Pearce,  63  Ala.  284;  Chadwick  v.  Carson,  78  Ala. 
116;  Bryant).  Wisncr,  44  La.  Ann.  832;  11  So.  Hep.  290;  Simpson  v. 
King,  1  Ircd.  Eq.  11;  Proctor  v.  Pool,  4  Dev.  370;  British  an-I  Anu-rionn 
Mortgage  Co.  v.  Long,  113  N.  C.  123;  18  S.  E.  Kcp.  165;  Sliaffrr  r.  Ilahn, 
111  N.  C.  1;  15  S.  E.  Rep.  1033;  Raymond  v.  Coffey,  6  Or.  132;  K«!itli  v. 
Reynolds,  3  Me.  393;  Cate  v.  Thayer,  3  Mc.  71;  Chandler  v.  (Jreen,  69 
Me.  350;  Andrews  v.  Pearson,  68  Me.  19;  Abbott  i-.  Abbott,  53  Mi-.  :i56; 
Jones  V.  Buck,  54  Me.  301;  (ietchell  v.  Whittemore,  72  .Me.  :m;  Kinsey 
V.  Satterthwaite,  88  Ind.  342. 


§  1016  DESCRIPTION.  1416 

in  execution,  was  not  entitled  to  record,  described  the 
land  erroneously  as  lot  78.  There  was  another  plat  which 
contained  the  lot,  but  this  plat  was  not  recorded,  and  it 
was  shown  that  the  lot,  for  more  than  twenty-five  years, 
had  been  held,  taxed,  and  dealt  with  as  lot  77.  Under 
these  circumstances,  it  was  held  that  the  deed  was  not 
invalidated  for  the  error  in  the  description.^  In  a  mort- 
gage several  lots  were  described  by  numbers,  with  the  ad- 
ditional clause,  "  being  all  of  block  25."  This  block  did 
not  contain  the  numbers  mentioned  in  the  instrument, 
but  they  were  in  another  block.  It  appeared,  however, 
that  it  was  the  intention  of  the  mortgagor  to  mortgage 
the  block  in  which  he  resided,  and  that  he  resided  in 
block  25,  and,  accordingly,  it  was  held  that  block  25  was 
subject  to  the  mortgage.^  Where  there  are  several  calls 
in  a  deed,  and,  with  the  exception  of  one,  they  may  all 
be  applied  upon  the  face  of  the  earth,  constituting  a  cor- 
rect and  intelligent  description  of  the  lot  to  which  they  , 
refer,  the  one  that  does  not  apply  will  be  rejected  as  sur- 
plusage, and  the  others  will  prevail.*  A  description  in  a 
deed,  made  in  1840,  stated  that  the  land  was  situated  in 
the  county  of  Lenawee  and  territory  of  Michigan,  and 
part  of  the  land  conveyed  was  assigned  to  a  certain  town- 
ship and  range.  The  township  and  range  described  were 
in  Monroe  county,  but  not  in  Lenawee  county,  and  Michi- 
gan was  no  longer  a  territory  at  the  time  at  which  the 
deed  bore  date;  but,  in  the  construction  of  the  deed,  it 
was  held  to  convey  the  land  in  the  township  and  range 
mentioned,  and  the  general  description  by  the  name  of 
the  county  was  rejected.*  If  the  deed  contains  two  de- 
scriptions, one  correct  and  the  other  false  in  fact,  the  lat- 

1  Wiley  V.  Lovely,  46  Mich.  83.  See  Vose  v.  Handy,  2  Greenl.  323;  11 
Am.  Dec.  101. 

«  Sharp  V.  Thompson,  100  111.  447;  39  Am.  Rep.  61. 

'  Chandler  v.  Green,  69  Me.  350. 

*  Wilt  V.  Cutler,  38  Mich.  189.  But  if  all  the  particulars  are  essen- 
tial to  the  description,  the  estate  conveyed  must  agree  with  every  part 
of  the  description.  See  Peck  v.  Mallams,  10  N.  Y.  533;  Kruse  v.  Wil- 
son, 79  111.  235. 


1417  DESCRIPTION.  §   1017 

ter  should  be  rejected  as  surplusage.^  Where  one  of  two 
difFereut  descriptions  applies  to  land  to  which  the  grantor 
had  title,  and  the  other  to  land  which  he  did  not  own, 
the  former  will  be  taken  as  the  true  description,  and  the 
latter  will  be  rejected  as  false/  If  sufficient  remains 
after  rejecting  a  part  of  the  description  which  is  false, 
the  deed  will  take  effect.' 

§  1017.  Illustrations. — A  deed  described  the  land 
conveyed  as  the  "  west  half  of  lot  284,  and  half  of  gore, 
both  containing  fifty  acres,  being  the  same,  more  or  less, 
as  surveyed  by  Israel  Johnson  and  Isaac  Boynton,  by 
order  of  the  court  of  sessions."  As  a  matter  of  fact  the 
persons  named  never  surveyed  the  land  described  by 
order  of  any  court,  but,  as  a  committee  of  the  court  of 
common  pleas,  duly  partitioned  the  lot  and  assigned  the 
west  half  to  the  grantor.  The  court  held  that  if  the  words 
relating  to  the  survey  were  to  be  regarded  as  erroneous, 
there  was  a  sufficient  description  in  the  remaining  lan- 
guage, "  west  half  of  lot  284,"  to  pass  the  title."  In  a  deed 
the  description  was:  "A  certain  sawmill  site  in  Levant  vil- 
lage, with  tlie  sawmill,  machinery,  and  fixures  thereon 
standing,  including  shingle  machine  and  cutting-off  saw, 
also  one  undivided  fourth  part  of  mill  common,"  with  other 

1  Reed  v.  Spicer,  27  Cal.  57.  And  see,  also,  Harvey  v.  Mitchell,  31 
N.  H.  575;  Abbott  v.  Abbott,  53  Me.  356;  Bond  v.  Fay,  12  Allen,  86; 
Lane  v.  Thompson,  43  N.  H.  o20;  Vose  v.  Handy,  2  Greenl.  322;  11  Am. 
Dec.  101;  Reed  v.  Proprietors  of  Locks,  etc.,  8  How.  274;  Robertson  v. 
Mosson,  26  Tex.  248;  Eastman  v.  Knight,  35  N.  H.  551;  Thompson  v. 
Jones,  4  Wis.  106;  White  v.  Gay,  9  N.  H.  126;  31  Am.  Dec.  224;  Jackson 
V.  Root,  18  Johns.  60;  Gibson  v.  Bogy,  28  Mo.  478;  Myers  v.  Ladd,  26 
111.  415 ;  Norwood  v.  Byrd,  1  Rich.  135 ;  42  Am.  Dec.  407.  And  see,  also, 
Hibbard  v.  Hurlburt,  10  Vt.  173;  Jackson  v.  Barringer,  15  Johns.  471; 
Clough  V.  Bowman,  15  N.  H.  504;  Goodright  v.  Pears,  11  East,  58. 

*  Piper  V.  True,  36  Cal.  606. 

*  Irving  V.  Cunningham,  66  Cal.  15.  But  where  a  grantor  did  not 
have  an  interest  beyond  an  estate  for  life,  a  deed  executed  by  him  pur- 
porting to  convey  "  one  divided  fourth  part  "  of  the  ian<l,  cannot  be  con- 
strued as  conveying  an  undivided  fourth  part  of  the  property.  The 
court  cannot  reject  the  word  "divided"  from  the  description :  Ford  v. 
Unity  Church  Soc,  120  Mo.  498;  41  Am.  St.  Rep.  711. 

*  Abbott  V.  Abbott,  53  Me.  356. 


§  1017  DESCRIPTION.  1418 

parcels  particularly  described,  and  adding,  "  meaning  to 
convey  to  said  Baxter  all  the  premises  which  said  William 
Bradbury  purchased  of  Benjamin  Garland,  by  deed,  dated 
March  19,  1832,  and  recorded  in  Penobscot  Registry, 
book  28,  page  448,  with  all  the  privileges,  and  subject  to 
all  the  restrictions  therein  expressed,  reference  thereto  for 
a  more  particular  description  of  said  premises."  The 
court  decided  that  by  this  description  the  mill  and  the 
whole  land  thereunder  would  pass,  notwithstanding  that 
by  the  deed  to  which  reference  was  had,  the  grantor  ac- 
quired but  a  part  of  the  property  upon  which  the  mill 
was  erected.^  A  deed  bearing  date  of  April  13,  1838,  de- 
scribed the  lands  intended  to  be  conveyed,  as  described 
in  a  deed  from  A  to  the  grantor,  "  of  even  date  herewith," 
referring  to  the  latter  deed  for  a  description  of  the  prem- 
ises. Only  one  deed  had  been  made  by  A  to  the  grantor, 
and  this  deed  was  dated  April  5,  1838.  In  the  construc- 
tion of  the  description  the  court  rejected  the  words  "of 
even  date  herewith"  as  erroneous.  But  as  there  was  no 
doubt  as  to  the  deed  or  the  land  intended,  the  title  was 
held  to  pass.''  So  in  the  case  of  a  devise  of  "all  my  home- 
stead farm,  being  the  same  farm  whereon  I  now  live,  and 
the  same  which  was  devised  to  me  by  my  honored  father," 
the  whole  of  the  homestead  farm  will  pass,  although  the 
fact  may  be  that  a  part  of  the  farrii  was  not  devised  by 
the  father.^  Where  an  island  is  described  by  its  name, 
to  which  is  added  a  description  by  courses  and  distances, 
and  the  latter  on  resurvey  are  found  to  exclude  a  part  of 
the  island,  the  whole  island  will  pass  by  force  of  the  first 
description.*  An  owner  of  land  lying  partly  in  lot  num- 
ber 10  and  partly  in  lot  number  9  conveyed  a  tract  of 
land  which  he  described  in  the  deed  as  lot  number  10, 
but  bounded  on  all  sides   by  the  land  of  other  persons. 

1  Crosby  v.  Bradbury,  30  Me.  61,  and  see  cases  cited  therein. 

2  Eastman  v.  Knight,  35  N.  H.  551,  and  cases  cited. 

3  Drew  V.  Drew,  28  N.  H.  (8  Fost.)  489.  This  case  is  frequently  cited 
as  an  authority,  and  is  valuable  for  its  examination  and  collection  of 
authorities. 

*  Lodge's  Lessee  v.  Lee,  6  Cranch,  237. 


1419  DESCRIPTION.  §  1018 

The  court  held  that  the  whole  tract  lying  in  both  lots  was 
conveyed  by  the  deed,  although  mistakes  had  been  made 
as  to  the  owners  of  the  adjoining  lots  in  the  description.^ 
The  description  in  a  deed  was:  "All  that  my  farm  of  land 
in  said  Washington,  on  which  I  now  dwell,  being  lot 
No.  17  in  the  first  division  of  lands  there,  containing 
one  hundred  acres,  with  my  dwelling-house  and  barn 
thereon  standing,  bounding  west  on  land  of  Joseph 
Chaple,  northerly  by  a  pond,  easterly  by  lot  No.  18,  and 
southerly  by  lot  No.  19,  having  a  highway  through  it." 
The  fact  was  that  the  limits  of  the  lot  were  correctly  de- 
scribed, but  the  farm  on  which  the  grantor  lived  was  not 
lot  No.  17,  but  a  different  parcel  of  land.  The  court  de- 
cided that  this  false  particular  of  the  description  should 
be  rejected, because  the  description  was  sutRciently  definite 
without  it,  for,  if  considered  as  an  essential  part  of  the  de- 
scription, the  effect  would  be  to  nullify  the  deed.^ 

§  1018.  Subject  continued. — In  designating  a  lot,  the 
number  of  it  was  not  given,  but  it  was  described  as  ad- 
joining the  land  of  four  several  individuals.  But  this 
description  taken  in  full  would  include  three  several  lots, 

'  Tenny  v.  Beard,  5  N.  H.  58.  Where  a  deed  in  tlie  granting  clause 
declared  that  the  grantor  "releases,  quitclaims,  and  conveyH"  to  the 
grantee,  "and  its  successors  and  assigns  forever,  all  his  right,  title,  and 
interest  of  every  name  and  nature,  legal  or  equital)le,  in  and  to"  the 
land,  and  in  a  subsequent  clause,  declares  that  "  the  interest  and  tillo 
intended  to  be  conveyed  by  this  deed  is  only  tliat  acciuireii  l»y"  tiio 
said  grantor  "by  virtue  of"  a  certain  deed  which  had  been  previouHly 
executed  to  him,  and  conveying,  it  is  assumed,  only  an  undividnl  half 
of  the  land,  the  two  clauses  are  inconaistent.  The  granting  clauHO 
will  prevail,  and  the  whole  interest  of  the  grantor  will  |>uhh  by  th.>  <l«'i'd  : 
Green  Bay  v.  Hewett,55  Wis.  96;  42  Am.  Kep.  701 ;  12  N.  W.  Kep.  ;{82. 

»  Worthington  v.  Hylyer,  4  Mass.  196.  The  court  said  :  "For  by  no 
construction  can  lot  No.  17  be  considered  as  conveyed,  to  the  oxrhision 
of  the  farm,  as  the  lot  is  mentioncKj  as  descriptive  of  the  farm,  and  not 
the  farm  as  descriptive  of  the  lot.  Indeed,  ratlu-r  than  the  <lee<l  hIiouKI 
be  deemed  void,  a  construction  ought  to  be  adopl.-d,  on  which  ix.th  iho 
farm  and  the  lot  should  be  conveyed  :  for  a  farm  on  which  the  mort- 
gagor then  lived  is  certainly  intended  to  be  c..nv»-yed;  and  the  1..1  is 
also  bounded  as  descriptive  of,  and  may  therefore  bo  couHidercd  ua  part 
of  the  premises." 


§  1018  DESCRIPTION,  1420 

and  a  quantity  of  land  exceeding  greatly  that  mentioned 
in  tlie  deed.  If,  however,  one  of  tlie  names  of  the  per- 
sons should  be  rejected,  one  lot  only  would  be  definitely 
designated.  Under  tliese  circumstances,  it  was  evident 
that  the  statement  tliat  such  person  was  an  adjoining 
owner  was  a  mistake,  and,  taking  this  view,  the  court  de- 
cided that  this  part  of  the  description  should  be  rejected 
as  such.^  A  description  was:  "All  my  real  property,  or 
homestead,  so  called,  lying  and  being  in  Dartmouth, 
consisting  of  a  dwelling-house  and  outbuildings,  together 
with  about  thirty  acres  of  land,  let  the  same  be  more  or 
less,  with  all  the  orchards,  privileges,  and  appurtenances 
thereto  belonging  or  any  way  appertaining — more  par- 
ticular boundaries,  reference  may  be  had  to  a  deed  given 
by  Clark  Ricketson  to  David  Thatcher,  of  the  above- 
mentioned  premises."  When  the  deed  was  executed, 
David  Thatcher  owned  only  a  part  of  the  land  which 
he  had  purchased  from  Ricketson..  He  had,  however, 
bought  about  as  much  from  Leban  Thatcher  adjoining 
the  land  purchased  by  him,  David,  from  Ricketson,  and 
in  fact,  bad  about  the  same  quantity  of  land  altogether  as 
he  had  purchased  from  the  latter.  The  principal  part  of 
the  land  conveyed  came  from  Ricketson,  but  by  inadver- 
tence the  deed  from  Ricketson  to  David  Thatcher  was 
referred  to  for  particular  boundaries.  But  the  grantee 
entered  into  possession  of  the  whole,  the  part  purchased 
by  David  Thatcher  from  Ricketson  as  well  as  the  part 
purchased  from  Leban  Thatcher.  The  reference  to  Rick- 
etson's  deed  was  held  to  be  a  mistake,  and  was  rejected 
as  an  inadvertency  in  the  description.^  At  the  time  the 
grantor  executed  a  deed  he  had  been  in  possession  of  and 
claimed  to  own  several  tracts  of  land  adjoining  each  other. 
The  whole  aggregated  about  two  hundred  and  eighty  acres. 
His  deed  described  the  land  conveyed  as  "a  certain  tract 
or  parcel  of  land,  situate  in  Falmouth,  containing  two 
hundred   and   thirty  acres,   more  or  less,   all   the  lands 

^  White  V.  Gay,  9  N.  H.  126;  31  Am.  Dec.  224,  and  cases  cited. 
'  Thatcher  v.  Howland,  2  Met.  41. 


1421  DESCRIPTION.  §  1018 

which  I  own  in  said  town,  the  butts  and  bounds  may  be 
found  in  the  county  records  of  Portland."     By  an  exami- 
nation of  the  records  it  appeared  that  several  different 
tracts  of  land  adjoining  each  other  had  been  conveyed  to 
the  grantor,  and  these,  in  the  aggregate,  contained  two 
hundred  and  thirty-five  acres.     But  in  addition  to  these 
several  tracts  there  was  another  adjoining  them.     To  this 
latter  parcel  it  did  not  appear  that  the  grantor  had  any 
title   apparent  by  the  record,  or  any  other  than  a  title 
acquired  by  possession.     But  the  whole  of  the  land,  in- 
cluding this  latter  tract,  was  held  to  pass  by  the  descrip- 
tion.^    If  the  land  is  described  as  the  whole  of  a  certain 
farm,  and  is  again  described  in  the  deed  by  courses  and 
distances,  which,  however,  do  not  embrace  the  whole  farm, 
this  latter  description  will  be  rejected,  and  the  title  to  the 
whole   farm  will  pass  by  the  deed.-     In  another  case,  a 
person  owned  a  farm,  title  to  which  he  had  acquire<l  by 
two  deeds,  the  first  conveying  to  him  an  undivided  one- 
third   part,  and  the  second  the  residue.     He  executed  a 
mortgage  deed  of  a  piece  of  land,  describing  it  as  being 
the  same  land  mentioned  in  his  first  deed,  to  which  ho 
referred,  and  as  being  his  whole  farm.     The  reference  to 
the  first  deed  was  held  to  be  intended   for  the  description 
of  the  laud  only,  and  not  as  describing  the  quantity  of 
estate    or   interest  affected  by  the  mortgage.     In   other 
words,  the  whole  farm  was  considered  to  be  embraced  by 
the  mortgage.'     In  a  deed  under  which  the  grantor  lioM, 
three  adjoining  parcels  of  land  were  convoyed,  each  uf 
which  was  particularly  described.     He  subsequently  exe- 
cuted a  deed,  which  commenced  in  the  language  of  the 
former  deed  as  a  conveyance  of  three  parcels,  but  it  do- 
scribed  only  the  first  parcel,  and  referred  to  the  deed  from 
his  grantor  to  himself.     All  three  parcels,  the  court  hold, 
passed  by  the  deed.* 

»  Field  V.  Huston,  21  Me.  69. 

»  Keith  V.  Reynolds,  SGreenl.  393.    And  see  Gate  v.  Thayer,  J  Urc.nl. 

71. 

»  Willard  v.  Moulton,  4  Green).  14. 
*  Child  V.  Fickett,'4  Greenl.  472. 


§  1019  DESCKIPTION.  1422 

§  1019,  Parcel  of  larger  tract. — A  deed  conveying  a 
part  of  a  larger  tract  of  land,  but  not  locating  the  part 
conveyed,  is  construed  as  conveying  an  undivided  inter- 
est in  the  larger  tract.  If  the  deed,  however,  attempts  to 
describe  a  specific  portion,  designating  the  number  of 
acres,  and  describing  it  as  a  parcel  of  a  larger  tract,  but 
the  calls  do  not  describe  the  tract  of  land  intended  to  be 
conveyed,  or  any  tract  of  land,  the  deed  does  not  convey 
an  interest  in  the  whole  tract,  nor  does  it  make  the 
grantee  a  tenant  in  common  in  the  larger  tract  with  the 
grantor.^  "Where  a  deed  is  of  a  given  quantity  of  land, 
parcel  of  a  larger  tract,  and  the  deed  fails  to  locate  the 
quantity  so  conveyed  by  a  sufficient  description,  the 
grantee,  on  delivering  the  deed,  becomes  interested  in  all 
the  lands  embraced  within  the  larger  area  as  tenant  in 
common  with  his  grantor,  and  as  such  tenant  the  grantee 
can  claim  a  partition  under  proceedings  instituted  for 
that  purpose,  or  alternatively,  a  partition  may  be  made 
by  amicable  agreement  between  the  parties."^  Where 
the  owners  of  a  quarter  section  of  land  had  conveyed 
twenty-two  and  twenty-nine  hundreths  acres  taken  from 
the  southeasterly  part  of  the  quarter  section,  and  subse- 
quently executed  a  deed,  describing  the  land  conveyed  as 
"the  east  one  hundred  acres  of  the  quarter  section,  com- 

»  Grogan  v.  Vache,  45  Cal.  610;  Lawrence  v.  Ballou,  37  Cal.  518; 
Schenck't).  Evoy,  24  Oal.  104,  110. 

2  Schenck  v.  Evoy,  24  Cal.  110.  The  court  quote  this  language  with 
approval  in  Lawrence  v.  Ballou,  37  Cal.  518,  520.  and  say:  "And  in  view 
of  the  nature  of  the  present  action,  we  add  that  if  the  grantor  or  his 
grantees  exclude  him  from  the  possession,  he  may  maintain  ejectment 
against  them.  To  the  same  effect,  see,  also,  the  following  cases :  Lick  v. 
O^'Donnell,  3  Cal.  59;  58  Am.  Dec.  383;  Gibbs  v.  Swift,  12  Cush.  393; 
Sheafe  v.  Wait,  30  Vt.  735;  Jackson  v.  Livingston,  7  Wend.  136;  Corbin 
V.  Jackson,  14  Wend.  619;  28  Am.  Dec.  550;  The  Long  Island  R.  R.  Co. 
V.  Conklin,  29  N.  Y.  572." 

But  in  Grogan  v.  Vache,  45  Cal.  610,  613,  the  court  said  that  it  could 
find  no  case  in  which  a  deed  attempting  to  convey  a  parcel  of  a  larger 
tract,  taut  not  describing  the  land  intended  to  be  conveyed  so  that  it  may 
be  located,  "is  held  to  operate,  by  reason  of  such  insufficient  description 
of  the  specific  tract,  as  a  conveyance  of  an  undivided  interest  in  the 
larger  tract ;  and,  in  our  opinion,  there  is  no  rule  for  the  construction  of 
deeds  which  will  work  that  result." 


1423  DESCRIPTION.  §  1020 

mencing  on  the  west  bank  of  the  Feather  river,  and  run- 
ning back  to  the  westward  far  enough  so  as  to  contain 
one  hundred  acres  of  the  quarter  section,  excepting  there- 
from a  small  piece  of  land,"  sold  by  the  owners  as  stated, 
the  court  construed  the  deed  as  conveying  only  seventy- 
seven  and  seventy-one  hundreths  acres.^ 

§  1020.  Reference  to  maps  or  other  deeds. — A  deed, 
for  a  description  of  the  land  conveyed,  may  refer  to 
another  deed  or  to  a  map,  and  the  deed  or  map  to  which 
reference  is  thus  made  is  considered  as  incorporated  in 
the  deed  itself.^     Where  the  description  is  by  courses  and 

1  Cox  V.  Hayes,  64  Cal.  32. 

«  Lippett  V.  Kelly,  46  Vt.  516;  Powers  v.  Jackson,  50  Cal.  429;  Vance 
V.  Fore,  24  Cal.  444;  Foss  v.  Crisp,  20  Pick.  121 ;  Schenley  v.  Pittsburgh, 
104  Pa.  St.  472;  City  of  Alton  v.  Illinois  etc.  Co.,  12  111.  38;  52  Am.  Dec. 
479 ;  Waterman  v.  Andrews,  14  R.  I.  589 ;  Wuesthoff  v.  Seymour,  22  N.  J. 
Eq.  66;  Rutherford  v.  Tracy,  48  Mo.  325;  8  Am.  Rep.  104;  Alkn  r.  Taft, 
6  Gray,  552 ;  Hudson  v.  Irwin.  50  Cal.  450 ;  St.  Louis  v.  Wiggin's  Ferry 
Co.,  15  Mo.  App.  227;  Boylston  v.  Carver,  11  Mass.  515;  Dolde  v.  Vo- 
dicka,  49  Mo.  100;  Reed  v.  Lammel,  28  Minn.  306;  Lunt  v.  Holland,  14 
Mass.  149;  Ferris  v.  Coover,  10  Cal.  622;  ^hirras  v.  Caig,  7  Cranch,  48; 
Davis  V.  Rainsford,  17  Mass.  207 ;  Morgan  v.  Moore,  3  Gray,  319;  Thomas 
V.  Patten,  13  Me.  329;  Kennebec  Purchase  v.  Tiffany,  1  Greenl.  (1  Me.) 
219;  10  Am.  Dec.  60;  McDonald  w.Lindall,  3  Rawle,  496;  Farnsworth  v. 
Taylor,  9  Gray,  162;  Chamberlain  v.  Bradley,  101  Mass.  191 ;  3  Am.  R^p. 
331;  Fox  V.  Union  Sugar  Co.,  109  Mass.  2'J2;  .''•tetson  v.  Dow,  16  Gray, 
374;  McCausland  v.  Fleming,  63  Pa.  St.  36;  .Jenks  v.  "War.l,  4  Mich.  404; 
Allen  V.  Bates,  6  Pick.  460;  Knight  z;.  Dyer,  57  Me.  176;  9'.»  Am.  Dec. 
765;  Perry  v.  Binney,  103  Mass.  156.  See  Read  v.  Cramer,  1  Green  CJi. 
277;  34  Am.  Dec.  204.  And  see,  Turnbull  v.  Schroeder,  29  Miiui.  19; 
Lovejoy  v.  Lovett,  124  Mass.  270;  Walker  v.  Boynton,  120  Muhh.  M^J; 
Quinin  v.  Reimers,  46  Micl).  605;  Auburn  Church  v.  Walker,  124  Mass. 
69 ;  Boston  Water  Power  Co.  v.  Boston,  127  Mass.  374 ;  Billings-ley  v.  Bato8, 
30  Ala.  378;  68  Am.  Dec.  120;  Union  Railway  &  Transit  Co.  v.  Skinner, 
9  Mo.  App.  189;  Baxter  v.  Arnold,  114  Mass.  577;  Twogood  v.  Hoy  I,  42 
Mich.  609;  Climer  v.  Wallace,  28  Mo.  556;  75  Am.  Dec.  13');  .larstiKll  v. 
Morgan,  48  Wis.  245;  Tate  v.  Gray,  1  Swan,  73;  Van  lllaroom  v.  Kip.  2 
Dutch.  351;  Montgomery  v.  Carlton,  56  Tex.  431;  Caldwell  v.  Center, 
30  Cal.  543;  89  Am.  Dec.  131;  Simmons  u.  Juhtison,  14  Wi8.526;  WhiiiuK 
V.  Dewey,  15  Pick.  434;  Needham  t;.  Judson,  101  Muhh.  HH  ;  Cliapmun  i. 
Pollack,  70  Cal.  487;  ]Murray  v.  Klinziiig,  64  Conn.  78;  King  p.  h»'ura.  91 
Ga.  577;  City  of  St.  Louis  v.  Railway  Co.,  114  Mo.  13;  Overaiid  v.  Men«- 
zer,  83  Tex.  112;  Plummer  v.  Gould,  92  Mich.  1;  31  Am.  St.  Rep.  :>Q7; 
Rupert  V.  Penner,  35  Neb.  587;  Campljell  v.  Morgan,  22  N.  Y.  Su|.p. 
1001;  Whitehead  v.'Ragan,  106  Mo.  231;  Young  v.  CoBgrove,  83  Iowa, 


§   1020  DESCRIPTION.  1424 

monuments  and  boundary  lines  of  other  tracts  of  land, 
and  then  the  deed  declares  that  the  description  already- 
made  is  to  be  according  to  a  survey  previously  made  by 
a  certain  person,  the  survey  by  such  reference  is  incorpo- 
rated into  the  deed.  The  title  of  the  grantee  extends  only 
to  the  land  contained  within  the  exterior  lines  of  such 
survey.^  Where  a  recorded  plat  shows  the  existence  of 
a  street  or  alley,  and  land  is  conveyed  by  reference  to 
such  plat,  a  street  or  alley  is  necessarily  excluded  from 
the  deed.  The  grantee  is  charged  with  notice  of  the 
streets  and  alleys  shown  by  the  raap.^  If  the  deed  refers 
to  a  plat,  containing  upon  its  face  that  to  which  the  ex- 
pressions contained  in  the  deed  may  be  applied,  the  court 
will  not  reject  the  words  of  the  deed,  if  it  can  connect  the 
deed  and  plat  in  construction.^  Where  a  question  arises 
as  to  the  true  location  of  the  boundary  line  between  two 
town  lots,  if  the  lots  are  described  by  numbers  only,  it 
may  be  that  the  boundary  recognized  by  actual  use  and 
occupation  is  the  one  intended.  But  when  the  lots  are 
referred  to  "as  known  and  designated  in  the  plan"  of  the 
town,  and  the  plan  contains  a  specific  description  of  the 
lots,  the  deed  has  the  same  effect  as  if  the  description 
contained  in  the  plan  were  incorporated  in  the  deed,  and 
it  cannot  be  shown  by  parol  that  the  intention  was  that 
the  boundaries  should  be  different.*     The  deed  referred 

682;  O'Herrin  v.  Brooks,  67  Miss.  266;  6  So.  Rep.  844;  Heffelman  v. 
Otsego  Water  Co.,  78  Mich.  121;  43  N.  W.  Rep.  1096;  Marvin  w.  Elliott, 
99  Mo.  616;  Miller  v.  Topeka  Land  Co.,  44  Kan.  354;  24  Pac.  Rep.  420; 
Prentice  v.  Northern  Pac.  R.  R.  Co.,  154  U.  S.  163 ;  Winnipisiogee  Paper 
Co.  V.  New  Hampshire  Land  Co.,  59  Fed.  Rep.  542;  Sanborn  v.  Mueller, 
38  Minn.  27;  35  N.  W.  Rep.  666;  Wright  v.  Lassiter,  71  Tex.  640;  Sink 
V.  McManus,  49  Hun,  583;  Midyett  v.  Wharton,  102  N.  C.  14;  Redd  v. 
Murry,  95  Cal.  48 ;  Bohrer  v.  Lange,  44  Minn.  281 ;  Masterson  v.  Munro, 
105  Cal.  431;  45  Am.  St.  Rep.  57;  Payne  v.  English,  79  Cal.  540. 

'  Hudson  V.  Irwin,  50  Cal,  450.  A  description  of  a  block  of  land  by  a 
number  according  to  the  official  map  will  prevail  over  a  description  of 
the  block  by  metes  and  bounds  if  there  be  a  conflict:  Masterson  v. 
Munro,  105  Cal.  431 ;  45  Am.  St.  Rep,  57. 

»  Burbach  v.  Schweinler,  56  Wis.  386, 

»  City  of  Alton  v.  Illinois  Transp.  Co.,  12  111.  38;  52  Am.  Dec.  479. 

*  Davidson  v.  Arledge,  88  N.  C.  326. 


1425  DESCRIPTION.  §   1020 

to  and  the  deed  so  referring,  when  taken  together,  must 
be  certain  in  description  as  to  the  land  intended  to  be 
conveyed.^  When  land  is  described  by  reference  to  cer- 
tain degrees  of  latitude  and  also  to  a  certain  map,  the  de- 
grees of  latitude,  in  case  of  a  conflict  between  the  two 
descriptions,  will  be  rejected,  as  being  less  certain  than 
the  map,^  If  the  description  of  the  deed  referred  to  is 
otherwise  sufficient,  the  fact  that  such  deed  is  not  recorded 
in  the  county  in  which  it  is  said  to  be  recorded,  is  imma- 
terial.^ Where  the  land  conveyed  is  described  by  lot  and 
block,  with  an  additional  description  by  metes  and 
bounds,  containing  a  less  quantity  of  land  than  the  lot, 
the  intention  of  the  grantor  is  to  convey  the  whole  lot.* 
And  where  the  land  is  described  as  that  conveyed  to  the 
grantor  by  another  deed,  to  which  reference  is  made  for 
a  particular  description,  the  grantee  will  not  obtain  title 
to  a  lot  excepted  from  the  deed  thus  referred  to,  notwith- 
standing that  the  grantor,  at  the  time  of  the  execution  of 
the  latter  deed,  had  title  to  the  excepted  lot.^  It  does  not 
necessarily  follow  that  a  particular  description  in  a  deed 
is  to  be  enlarged  by  a  succeeding  general  description,  by 
way  of  reference  to  and  adoption  of  the  description  con- 
tained in  a  former  deed.^  A  deed  containing  a  descrip- 
tion, and  referring  to  a  map  having  lines  drawn  upon  it, 
and  marking  the  natural  boundaries  and  the  natural  ob- 
jects delineated  upon  its  surface,  should  be  considered  as 
giving  the  true  description  of  the  land,  as  much  as  if  the 

1  Caldwell  v.  Center,  30  Cal.  539;  89  Am.  Dec.  131. 

*  Mayo  V.  Mazeaux,  38  Cal.  442.  See,  also,  Poorman  v.  Miller,  44  Cal. 
269. 

*  Saunders  v.  Schmaelzle,  49  Cal.  59. 

*  Rutherford  v.  Tracy,  48  Mo.  'i25;  8  Am.  Kep.  104.  A  subsequent 
conveyance  by  a  grantor  of  streets  or  alleys  laid  out  on  a  map  and  dedi- 
cated to  public  use  is  void :  Moose  v.  Carson,  104  N.  C.  431;  17  Am.  St. 
Rep.  681. 

*  Getchell  ?;.  Whittemore,  72  Me.  393. 

■  Brunswick  Savings  Institution  v.  Crossman,  76  Me.  577;  Lovejoy  v. 

Lovett,  124  Mas*.  270.     A  map  pasted  by  the   recorder  at  a  j)articular 

page  of  the  record  is  sufficiently  identified  by  a  deed  which  refers  to  it  as 

•'  recorded"  in  such  a  l)ook  and  page:  McCullough  v.  Olds,  108  Cal.  529. 

L)EED9,  Vou  n.  —  90 


§  1020  a  DESCRIPTION.  1426 

map  were  marked  down  in  the  deed.*  If  any  competent 
surveyor  can  locate  the  land  and  ascertain  the  dimensions 
of  the  various  parcels,  the  map  is  sufficient.^  But  a  sur- 
veyor must  have  data,  and  cannot  determine  lines  and  fix 
monuments  according  to  his  own  ideas.^  For  the  purpose 
of  showing  lines  and  boundaries,  it  can  always  be  proven 
where  the  survey  actually  ran.* 

§  1020  a.  Conflict  between  map  and  survey. — Where 
a  deed  describing  the  land  conveyed  refers  to  a  map  and 
also  to  the  survey  upon  which  the  map  is  based,  the  map, 
in  the  absence  of  evidence  to  the  contrary,  will  be  pre- 
sumed correctly  to  represent  the  survey,  and  it  is  unnec- 
essary to  look  to  the  latter.  But  if,  instead  of  agreeing, 
there  are  discrepancies  between  them,  the  survey  must 
prevail.^  In  an  early  case  in  New  York,  a  tract  of  land 
which  was  granted  by  the  commissioners  of  the  land-office 
to  several  persons,  with  a  description  by  its  exterior  bound- 
aries alone,  was  directed  to  be  surveyed  by  the  surveyor 
general,  and  patents  were  directed  to  be  issued  for  the 
several  lots  according  to  the  return  and  map  of  such  sur- 
vey. The  patents  described  the  lots  by  reference  to  the 
map,  but  it  was  held  that  the  patents  were  to  be  under- 
stood as  referring  to  the  field-book  and  actual  survey  as 
well  as  to  the  map  on  file.  It  was  also  held  that  the  own- 
ers were  bound  by  their  several  locations  as  they  appeared 
by  the  lines  on  the  ground,  although  it  might  be  that 
some  of  the  lots  would  exceed,  and  others  would  not  equal, 
the  quantity  of  acres  mentioned  in  the  patents.^  Where 
a  deed  refers  to  a  map  as  an  official  map  for  a  further 
description,  and  the  map  purports  on  its  face  to  be  "laid 
out"  by  an  individual,  these  words  are  equivalent  to  "as 

1  Chapman  v.  Polack,  70  Cal.  487. 

«  Village  of  Auburn  v.  Goodwin,  128  111.  58. 

*  Jones  V.  Lee,  77  Mich.  37  j  Fisher  v.  Cowling,  66  Mich.  370. 

*  Euliss  V.  McAdams,  108  N.  C.  507. 

'  Whiting  V.  Gardner,  80  Oal.  79;  O'Farrell  v.  Harney,  51  Cal.  125; 
Penry  v.  Richards,  52  Oal.  496. 

^  Jackson  v.  Freer,  17  Johns.  30.  See,  also,  Jackson  v.  Cole,  16  Johns. 
256. 


1407 

DESCRIPTION.  §§  1021,  1022 

surveyed  "  by  such  individual,  and  include  a  reference  to 
the  monuments  erected  by  the  surveyor.  The  deed  is  to 
be  construed  as  referring  to  such  monuments,  and  such 
monuments,  in  case  of  a  discrepancy,  will  control  the 
courses  and  distances  laid  down  on  the  map.^  Tiie  fact 
that  a  deed  of  a  lot  in  a  town  refers  to  the  official  map  of 
the  town-plat  for  a  description  does  not  preclude  the  in- 
troduction  of  parol  evidence  to  show  that  the  survey  in 
the  field,  from  which  the  map  was  made,  conflicts  with 
the  map.  If  the  points  and  lines  established  by  the  sur- 
vey can  be  proved,  the  survey  must  prevail  over  the  map 
in  arriving  at  the  correct  boundary  of  the  lot."-* 

§  1021.  Loss  of  plat.— The  loss  of  a  plat  referred  to 
in  a  deed,  rendering  it  ditficult  to  ascertain  the  bounda- 
ries of  the  land  conveyed,  does  not  avoid  the  deed.'  The 
plan  is  a  part  of  the  deed,  and  is  to  be  so  construed  when 
attempted  to  be  controlled  by  the  general  language  of  tlie 
deed  calling  for  natural  monuments  and  boundaries.* 
If  in  an  action  of  ejectment  both  parties  claim  under 
deeds  which  refer  to  a  recorded  town-plat,  for  the  purpose 
of  identifying  the  lot,  the  record,  notwithstanding  that 
the  plat  may  not  liave  been  made  in  conformity  witii  law, 
is  pro^Der  evidence. 


s 


§  1022.  Parol  evidence  as  to  plat. — Where  a  plat  is 
referred  to  as  annexed  to  a  deed,  although  it  may  have 
become  separated  from  the  <leed,  yet  it  may,  when  it  is 
admitted  or  shown  that  it  is  the  same. plat  referred  to,  bo 
received  in  evidence.^     If  thu  land  is  described  as  a  lot  of 

»  Penry  v.  Richards,  52  Cal.  496. 

'  O'Farrell  v.  Haruey,  51  Cal.  125.  See,  also,  Cheiiow»;lh  v.  liaskiira 
Lessees,  3  Pet.  93. 

"  New  Hampshire  Land  Co.  v.  Tilton,  19  Fed.  Koji.  73. 

*  Schenley  v.  Pittsburgli,  104  I'a.  St.  472.  The  fact  that  tho  n-ronlcr 
indorses  on  the  map  a  later  survey  of  a  part  of  the  hind  d<-hi,<-at«'d  on  it 
will  not  destroy  its  identity  with  the  map  referred  to  in  tho  deed:  Mo 
Cullough  V.  Ulds,  108  Cal.  529. 

'  Burk  V.  Andis,  98  Ind.  59. 

•  McCuUough  V.  Wall,  4  Kich.  68;  53  Am.  Dec.  715. 


§  1022  DESCRIPTION.  1428 

land  in  a  town  "  known  and  described  on  the  official  map 
of  said  town  as  block  No.  6,"  parol  evidence  is  admissible 
to  identify  the  map,  and,  when  so  identified,  the  map 
forms  a  portion  of  the  deed.^  The  words  on  the  face  of  a 
map  of  a  town,  "as  laid  out"  by  a  certain  person,  are 
equivalent  to  "as  surveyed"  by  him,  and  embrace  a  ref- 
erence to  the  monuments  placed  on  the  land  by  the  sur- 
veyor. If  such  map  is  referred  to  in  a  deed  as  a  part  of 
the  description,  the  deed  is  to  be  constraed  as  referring 
to  such  monuments,  and  they,  rather  than  the  courses  and 
distances  laid  down  on  the  map,  will  govern.^  If  a  lot  in 
a  town  is  conveyed  by  a  description  which  refers  to  the 
official  map  of  the  town  plat,  this  reference  does  not  pre- 
vent the  reception  of  parol  evidence  for  the  purpose  of 
showing  a  conflict  between  the  survey  in  the  field  from 
which  the  map  was  made  and  the  map  itself,  if  the  object 
is  to  determine  the  correct  boundary  of  the  lot.^  The  plan 
referred  to  in  a  deed  in  legal  construction  becomes  a  part 
of  the  deed.  It  is  not  subject  to  other  explanations  by  ex- 
traneous evidence  to  any  greater  extent  than  it  would  be  if 
all  the  particulars  of  the  description  had  been  set  out  at 

J  Penry  v.  Richards,  52  Cal.  496. 

2  Penry  v.  Eichards,  52  Cal.  496.  See  Pettigrew  v.  Dobbelaar,  63  Cal. 
396. 

'  O'Farrell  v.  Harney,  51  Cal.  125.  Said  the  court :  "  The  question  is, 
•where  are  the  boundaries  of  the  lot  conveyed  by  Taylor  to  Moran?  The 
map  was  intended  as  a  representation  of  the  survey  actually  made  on 
the  ground,  the  position  of  the  blocks  and  lots  as  indicated  by  the  lines 
as  run  and  the  stakes  driven  at  the  corners.  A  map  which  by  reference 
to  monuments  established,  or  by  some  other  mode,  refers  to  a  survey,  is 
presumed  to  correctly  represent  the  survey  as  actually  made ;  but  if 
there  is  a  discrepancy  between  the  map  and  the  survey,  the  survey  must 
prevail,  if  the  position  of  the  points  and  lines  established  by  the  survey 
can  be  proved.  It  must  be  so  held  upon  the  principle  that  the  monu- 
ments, whether  natural  or  artificial,  must  prevail  over  the  courses  and 
distances.  But  it  is  urged  that  the  official  map  does  not  mention  a  stake 
at  the  northwest  corner  of  block  13,  and  that  the  admission  of  evidence 
showing  that  such  a  stake  had  been  set  at  the  first  survey,  is  in  violation 
of  the  rule  which  prohibits  the  admission  of  parol  evidence  to  vary, 
add  to,  or  contradict  a  deed.  Tlie  objection  is  not  tenable.  The  map 
was  intended,  as  has  already  been  said,  as  a  representation  of  the  actual 
survey,  and  the  evidence  only  proves  the  position  of  the  lines  as  run — lo- 
cates the  calls  mentioned  in  the  map." 


1429  DESCRIPTION.  §  1023 

length  in  the  body  of  the  deed.^  Where  a  deed  conveying 
a  mill  and  dam  with  water  privilege  refers  to  another  deed 
for  a  specification  of  the  privilege,  the  privilege  conveyed 
must  be  measured  by  such  deed,  and  not  by  the  use  that 
the  grantor  is  actually  making  of  the  water  at  the  time 
at  which  the  conveyance  is  executed.^  If  a  town  has  by 
ordinance  declared  a  certain  map  to  be  the  official  map, 
deeds  made  after  such  declaration,  and  referrinjr  to  the 
official  map,  refer  to  such  map.^ 

§  1023.  Right  to  way. — If  one  of  the  boundaries  of 
the  description  is  a  private  way  not  defined  in  the  deed,  but 
shown  upon  a  plan  which  is  referred  to  in  the  deed,  and 
which  is  recorded  in  the  registry  of  deeds,  the  grantor  is 
estopped  from  denying  the  existence  of  that  right  of  way. 
He  is  also  estopped  from  denying  the  existence  of  any 
connecting  ways  shown  on  the  plan,  enabling  the  grantor 
to  reach  public  ways  in  any  direction  so  far  as  the  title 
of  the  grantor  may  extend.*  So  if  the  way  is  shown  on 
the  plan  referred  to  in  the  deed,  and  the  plan  is  after- 
ward recorded  by  the  grantor  in  the  registry  of  deeds, 
he  and  those  claiming  under  him  are  estopped  from  ob- 
structing the  way  opposite  the  land  granted  and  within 
its  side  lines,  if  produced  at  right  angles  to  the  course  of 
the  way.^  A  court  called  "Central  Court"  was  laid  out 
over  the  land,  and  the  owner  laid  out  house  lots  on  tho 
court,  and  erected  a  house  on  each  of  two  adjoining  lots. 
He  afterward  conveyed  one  of  these,  tho  de3crij)ti()n  in  tho 
d'eed  being  "a  brick  house,  and  tho  land  under  and  a-1- 
joining  the  same,  being  No.  4  in  Central  Court,"  and  ac- 
cording to  the  reporter  was  thus  bounded:  "I'x-ginning 
in  front  of  said  house,  at  the  center  of  the  hrick  parti- 
tion wall  between  this  and  the  adjoining  hou.se,  an.l  run- 
ning easterly  on  a  lino  with  tho  center  of  said  wall,  etc., 

»  Proprietors  of  Kennebec  I'urcliaao  v.  Tiffany,  1  Grconl.  21'J;  10  Am. 
Dec.  60. 

*  Perry  v.  Binney,  103  :\Iafl3.  150. 
»  Penry  v.  Kichanls,  52  Cal.  4SHi. 

*  Fox  V.  Union  Sugar  Refinery,  109  Mass.  292. 
"  Kogera  v.  Parker,  9  Gray,  445. 


§  1023  DESCRIPTION.  1430 

about  80  feet  9  inches,  then  turning  and  running  north- 
erly to  kind  of  Salisbury,  about  27  feet  6  inches,  then 
turning  and  running  westerly,  bounded  northerly  on 
Salisbury's  land,  until  it  comes  on  a  line  with  the  front 
of  said  house,  about  85  feet  5  inches,  then  turning  and 
running  southerly  on  a  line  with  the  front  of  said  house 
about  27  feet  2  inches,  until  it  comes  to  the  center  of  the 
brick  partition  wall  first  mentioned,  together  with  the 
land  in  front  of  said  house,  under  the  stone  steps;  with 
a  right  to  pass  and  repass  on  foot,  and  with  horses  and 
carriages,  to  said  house  and  land  through  said  Central 
Court  at  all  times,  said  Homes  to  pay  one-half  the  ex- 
pense of  keeping  the  well  in  good  order,  and  the  expense 
of  keeping  the  sidewalk  in  front  of  said  house  in  good 
repair."  At  the  time  at  which  the  deed  was  made  the 
sidewalk  was  paved  with  brick,  the  shed  of  the  other 
house  of  the  grantor  forming  one  side  of  it,  the  shed, 
however,  having  no  door  opening  upon  it.  There  was  a 
strip  of  land  at  the  northerly  side  of  the  lot  conveyed. 
This  strip  was  not  covered  by  the  grantee's  house,  but  was 
used  as  a  passage  from  which  a  gate  opened  upon  the 
sidewalk,  connecting  the  kitchen  and  backyard  with 
Central  Court  over  the  sidewalk,  and  there  was  also  an- 
other gate  opening  upon  the  sidewalk  from  under  the 
front  steps  of  the  sidewalk.  It  was  impossible  to  gain 
access  to  either  of  the  gates  without  passing  over  some 
part  of  the  sidewalk.  The  court  held  that  whether  the 
sidewalk  was  or  was  not  a  part  of  Central  Court,  the 
grantee  was  entitled  to  a  right  of  way  over  it.  The  way 
granted  was  to  be  considered  as  limited  and  defined  by 
the  grantee's  house  on  one  side  and  the  grantor's  shed  on 
the  other,  and  not  merely  as  a  convenient  way  to  be  some 
time  afterward  defined.^ 

*  Salisbury  v.  Andrews,  19  Pick.  250.  And  see,  also,  relating  to  righta 
of  way,  Stetson  v.  Dow,  16  Gray,  372;  Atkins  v.  Bordman,  2  Met.  457; 
37  Am.  Dec.  100;  Thomas  v.  Poole,  7  Gray,  83.  See,  also,  Parker  v. 
Bennett,  11  Allen,  388;  Morgan  v.  Moore,  3  Gray,  319;  Lunt  v.  Holland, 
14  Mass.  149;  Murdock  v.  Chapman,  9  Gray,  156;  Davis  v.  Raiusl'ord,  17 
Masti.  207. 


^^^^  DESCRIPTION.  g  102 

§   1024.     Land   bounded  by   non-navigrable   stream  or 

hig-hway.— Unless  the  deed  manifests  an  intention  on  the 
part  of  the  grantor  to  limit  the  boundary  line,  the  line, 
when  the  land  is  bounded  by  a  non-navigable  stream  or 
highway,  extends  to  the  center  of  such  stream  or  high- 
way,  if  the  grantor  is  the  owner  of  the  fee.'    Hence,  where 

1  Dean  v.  Lowell,  135  Mass.  55;  Pike  v.  Munroe,  36  Me.  309;  58  Am. 
Dec.  751 ;  White  v.  Godfrey,  97  Mass.  472 ;  Kittle  v.  Pft-iffer,  22  Cal.  484 ; 
Demeyer  v.  Legg,  18  Barb.  14;  Webber  v.  Cal.  &  0.  R.  R.  Co.,  51  Cal. 
425;  Nichols  v.  Suncook  Mfg.  Co.,  34  N.  H.  345;  Berridge  v.  Ward.  10 
Com.  B.,N.  S.,400;Mottt;.  Mott,  68  N.  Y.246;  Helmer  t;.  Castle,  109  III. 
664;  Cox  v.  Louisville  etc.  R.  R.  Co.,  48  Ind.  178;  Transne  v.  Sell,  105 
Pa.  St.  604,  and  cases  cited;  Champlin  etc.  R.  R.  v.  Valentine,  19  Barb. 
484;  Hoff  v.  Tobey,  66  Barb.  347;  Salter  v.  Jonas,  39  N.  J.  L.  469;  23 
Am.  Rep.  229;  Norris  v.  Hill,  1  Mann.  (Mich.)  202;  Winter  v.  Peterson, 
4  Zab.  524;  61  Am.  Dec.  678;  Banks  v.  Og<len,  2  Wall.  57;  Moody  v. 
Palmer,  50  Cal.  31;  Kingsland  v.  Chittenden,  6  Lans.  15;  Watson  v. 
Peters,  26  Mich.  508;  Maynard  v.  Weeks,  41  Yt.  617;  Paul  r.  Carver,  26 
Pa.  St.  223;  67  Am.  Dec.  413;  Newhall  v.  Ireson,  8  Cush.  597;  54  Am. 
Dec.  790;  Johnson  v.  Anderson,  18  Me.  76;  Dubuque  i'.  Maloney,  9  Iowa, 
451 J  74  Am.  Dec.  358;  Stark  v.  Coffin,  105  Mass.  328;  Gove  v.  White,  20 
Wis.  432;  Gear  v.  Barnum,  37  Conn.  229 ;  Hawesville  v.  Lander,  8  Bush, 
679;  Sutherland  v.  Jackson,  32  Me.  80;  Motley  v.  Sargent,  119  Mass.  231. 
And  see,  also,  bearing  on  the  same  proposition,  Child  v.  Starr,  4  Hill. 
369,  373;  Hollenbeck  v.  Rowley,  8  Allen,  473;  Codman  v.  Evans,  1  Allen, 
443;  Chatham  v.  Brainerd,  11  Conn.  60;  Lord  v.  Commrs.  of  Sidney, 
12  Moore  P.  C.  C.  497:  Jackson  v.  Hathaway,  15  Johns.  454;  8  Am.  Dec. 
263;  Read  v.  Leeds,  19  Conn.  182, 187 ;  Richardson  (•.  Vermont  etc.  R.  U., 
25  Vt.  472;  60  Am.  Dec.  283;  Tousley  v.  Galena  etc.  Mining  Co.,  2  J  Kan. 
328;  Milhau  v.  Sharp,  27  N.  Y.  611,  624;  84  Am.  Dec.  314;  Regiiui  i;. 
Board  of  Works,  4  Best  &  Smith,  526;  Bissell  v.  N.  Y.  Cent.  K.  R..  26 
Barb.  630;  Morrison  r.  Willard,  30  Vt.  118;  Kimball  v.  City  of  Keno- 
sha, 4  Wis.  331 ;  Cox  v.  Freedley,  33  Pa.  St.  124 ;  75  Am.  Dec.  584 ;  I'lml 
V.  Carver,  24  Pa.  St.  207;  64  Am.  Dec.  649;  Harris  r.  Elli<.t,  10  Peters, 
53;  Steel  v.  Prickett.  2  Stark.  463;  Fisher  v.  Smith,  9  Gray,  441;  Canal 
Trustees  v.  Havens,  11  111.  557;  O'Linda  v.  Loliirop,  21  Pick.  292;  WiiU-r 
V.  Harvey,  1  McCord,  67;  10  Am.  Dec.  6.^)0:  Parker  v.  Fniniinnhatn,  8 
Met.  260,  267;  Grose  v.  West,  7  Taunt.  39;  Trustees  v.  Lander,  8  lUiHh, 
679;  Fall's  v.  Reis,  74  Pa.  St.  4.39;  Smith  r.  Ih.wdon,  14  0)in.  B.,  N.  K., 
398;  Lewis  v.  Beattie,  105  Mass.  410;  Fisher  v.  Smith,  9  (Jrny,  444; 
Winslow  V.  King,  14  Gray,  323;  Boston  v.  Kichard«on,  13  Allen,  154; 
Sleeper  v.  Laconia,  60  N.  H.  202;  49  Am.  Rep.  311,  and  rasen  cited: 
Claremont  v.  Carlton,  2  N.  H.  369;  9  Am.  Dec.  «8.  The  l-atlure  or  allu- 
vion ri.'hts  to  the  river  frontage  will  pass  by  a  dee<l  desoribinK  the  land 
as  fronting  on  a  certain  street  and  extending  k-tween  8p.rilied  lineH  to 
the  river,  without  any  provision  to  that  effect;  Mcyeru  v.  Muthia,  42  La. 
Ann.  471 ;  21  Am.  b't.  Rep.  385. 


§  1024  DESCRIPTION.  1432 

a  deed  describes  the  land  conveyed  as  extending  five  hun- 
dred feet  to  a  street  or  avenue,  and  thence  at  right  angles 
along  the  street  one  hundred  and  twenty  feet  to  the  place 
of  beginning,  the  fee  of  the  land  to  the  center  of  the  street 
is  conveyed  subject  to  the  public  easement,  notwithstand- 
ing the  line  of  five  hundred  feet  extends  only  to  the  side 
of  the  street  and  not  to  its  center.  When  the  avenue  is 
no  longer  used  as  a  street,  the  land  is  freed  from,  the  ease- 
ment/ But  if  the  land  is  described  by  metes  and  bounds, 
without  any  reference  to  a  street,  the  grantee  acquires  no 
title  to  the  fee  of  an  adjacent  street  which  the  grantor  sub- 
sequently dedicated  to  the  public.^  If,  however,  lots  are 
sold  after  the  projection  of,  but  before  the  opening  of  a 
public  street,  and  the  deeds  describe  the  lots  as  running 
to  and  being  bounded  by  the  line  of  the  street,  the  fee  to 
the  center  of  the  street  j^asses,  and  the  grantees  are  entitled 
to  damages  upon  the  opening  of  the  street.'''  And  where 
land  is  laid  out  into  blocks  and  lots,  which  are  bounded 
by  what  are  represented  on  an  unrecorded  or  defective 
plat  as  streets,  a  deed  referring  to  the  plat  for  a  true  de- 
scription of  the  premises  passes  to  the  grantee,  as  against 
the  grantor  and  his  assigns,  the  fee  to  the  center  of  the 
street  upon  which  the  lot  conveyed  abuts.*     Where  the 

1  Moody  V.  Palmer,  50  Cal.  31.  See  Webber  v.  California  etc.  R.  R. 
Co.,  51  Cal.  425. 

*  Knott V.  Jefferson  Street  Ferry  Co.,  9  Or.  530. 

*  Easton  Burrough's  Appeal,  81  *Pa.  St.  85. 

*  Jarstadt  v.  Morgan,  48  Wis.  245.  For  other  cases  upon  the  con- 
struction of  deeds  in  which  one  of  the  boundaries  is  a  stream,  see  Nick- 
erson  v.  Crawford,  16  Me.  245;  Bishop  v.  Seeley,  18  Conn.  393;  Agawam 
Canal  Co.  v.  Edwards,  36  Conn.  476;  Hatch  v.  Dwight,  17  Mass.  289;  9 
Am.  Dec.  145;  Doddridge  v.  Thompson,  9  Wheat.  470;  Granger  v.  Avery, 
64  Me.  292;  Coovert  v.  O'Conner,  8  Watts,  470;  Herring  v.  Fisher,  1 
Sand.  344;  Hammond  v.  McLachlan,  1  Sand.  323;  Stone  v.  Augusta,  46 
Me.  127;  Watson  v.  Peters,  26  Mich.  508;  Gavit  t;.  Chambers,  3  Ohio, 
495;  Beahan  v.  Stapleton,  13  Gray,  427;  Coldspring  Iron  Works  v.  Tol- 
land, 9  Cush.  495;  Knight  v.  Wilder,  2  Cush.  199;  48  Am.  Dec.  660; 
Robinson  v.  White,  42  Me.  209.  Between  grantor  and  grantee,  a  deed  of 
a  lot  of  land  bounded  on  a  street  in  a  city  carries  the  land  to  the  center 
of  the  street.  The  deed  will  have  this  effect  although  it  does  not  refer 
to  the  street,  but  the  lot  is  described  by  a  number  as  represented  upon 
a  map,  showing  it  as  abutting  on  the  street,  and  the  bounds  as  given  do 


J-^^^  DESCRIPTION.  R  10'''4 

land  convej^ed  lies  east  of  a  certain  street,  and  the  deed 
explicitly  describes  the  land  as  bounded  by  the  east  lino 
of  the  street,  the  title  to  the  soil  in  the  sireet  does  not 

not  include  any  portion  of  the  street:  Hennessy  v.  Mardock,  137  N.  Y. 
317;  33  N.  E.  Rep,  830.  Mr.  Justice  Maynard  says  there  is  no  distinc- 
tion in  this  respect  between  the  streets  of  a  city  and  country  higlnvays, 
and  continues:  "This  construction  has  so  lomr  prevailed  that  it  lias  be- 
come a  rule  of  property,  and  it  is  founded  upon  the  presumed  intent  of 
the  parties  to  the  conveyance.  It  is  not  reasonable  to  infer  that  the 
grantor  intended  to  reserve  the  title  to  the  fee  of  the  narrow  strip  lying 
between  the  physical  boundaries  of  the  lot  conveyed  and  the  center  of 
the  street,  or  that  the  grantee  understood  that  any  such  reservation  luvi 
been  made.  The  use  of  the  fee  of  the  bed  of  the  street  is  so  inseparably 
connected  with  the  ordinary  use  of  the  adjacent  lot,  that  a  severam-e  of 
the  two  will  not  be  deemed  to  have  been  effected,  unless  the  presump- 
tion that  the  grantor  intended  to  pass  title  to  the  center  of  the  street  is 
rebutted  by  other  parts  of  the  deed,  and  by  the  condition  and  relation  of 
the  parties  to  the  lands  conveyed  and  other  lands  in  the  vicinity"  :  Hen- 
nessy V.  Murdock,  137  N.  Y.  317 ;  33  N.  E.  Rep.  330.  See,  also,  to  the 
same  effect,  Dunham  v.  Williams,  37  N.  Y.  251;  Mott  v.  Mott,  TiS  N.  Y. 
246;  Bissell  v.  N.  Y.  C.  R.  R.  Co.,  23  N.  Y.  61 ;  Perrin  v.  Laine,  30  N.  Y. 
120;  In  re  Ladue,  118  N.  Y.  220;  23  N.  E.  Rep.  4()5;  Haberman  v.  I'.aker, 
128  N.  Y.  259 ;  City  of  IJuffalo  v.  Pratt,  131  N.  Y.  298 ;  27  Am.  St.  Uep. 
692;  Jackson  v.  Platbaway,  15  Johns.  447;  8  Am.  Dec.  263;  Greer  v. 
N.  Y.  C.  &  H.  R.  R.  Co.,  37  Hun,  346;  Wallace  v.  Fee,  50  N.  Y.  OtH; 
Pollock  V.  Morris,  19  J.  &  S.  112;  Hammond  v.  McLachlan,  1  Sand.  323; 
Cochran  v.  Smith,  73  Hun,  597;  Holloway  v.  Southraayd,  139  N.  V.  390; 
34  N.  E.  Rep.  1047;  Wager  v.  Troy  etc.  R.  Co.,  25  N.  Y.  526;  Story  r. 
N.  Y.  Elevated  R.  Co.,  90  N.  Y.  122;  43  Am.  Rep.  146;  Mott  r.  .Motl.  68 
N.  Y.  246;  Lozier  v.  N.  Y.  Cent.  R.  Co.,  42  Barb.  465;  Sherman  v.  .Mc- 
Keon,  38  N.  Y.  266;  White's  Hank  v.  Nichols,  64  N.  Y.  65;  Jackson  v. 
Louw,  12  Johns.  252;  Watkins  v.  Lynch,  71  Cal.  21;  Fni^^er  ».  Olt,  95 
Cal.  661;  30  Pac.  Rep.  793;  Moody  v.  Palmer,  60  Cal.  31;  Wel.lxT  v. 
Cal.  &  O.  R.  R.  Co.,  51  Cal.  425;  Oxton  v.  Graves.  6S  Me.  371 ;  28  Am. 
Rep.  75;  Sutherland  v.  Jackson,  32  Me.  80;  Low  v.  Til.lx'tts,  72  .Me.  92; 
39  Am.  Rep.  303;  Cottle  v.  Young,  59  .Me.  105;  Bucknum  v.  Bucknani, 
12  Me.  463;  Johnson  v.  Anderson,  18  Me.  76;  Canal  TniHtecfl  v.  Haven, 
11  111.  554;  Helmer  v.  Castle,  109  111.  664  ;  Henderson  v.  Halterman,  146 
111.  555;  34  N.  E.  Rep.  1041 ;  Banks  v.  Ogden,  2  Wall.  67;  JnckBonvillu 
etc.  Ry.  Co.  v.  Lockwood,  33  Fia.  573;  15  So.  Hep.  327;  Cove  «•.  Wliiti', 
20  Wis.  425;  I\Iilwaukee  v.  IMilwankee  &  Bcloit  \i.  U.  Co.,  7  Wis.  85; 
Kimball  v.  Kenosha,  4  Wis.  321;  JarHta.lt  v.  Morgan,  48  Wi^^.  215:  4 
N.  W.  Rep.  27;  Andrews  v.  Yonmatis,  78  Wis.  'd.  47  N.  W.  lU-j..  ."SOI; 
Woodman  v.  Spencer,  54  N.  H,  507;  Ree<i'H  Petition,  13  N.  H.  3si  ;  Mc- 
Shanes.  Main,  62  N.  H.  4;  Marsh  v.  Hnrt,  34  Vt.  2H9;  Utt  i-.  Kwiter. 
110  Pa.  St.  370;  Paul  v.  Carver,  26  Pa.  Si.  223;  67  Am.  Dec  413;  H<Miley 
V.  Babbitt,  14  R.  I.  5.S3;  Maynard  v.  Weeks.  41  Vt.  617;  Chiirrh  v.  Stik-s, 
59  Vt.  462;  10  Atl.'Rep.  674;  Purkiaa  t;.  Benson,  28  Mich.  638;  Cox  v. 


§  1025  DESCRIPTION.  1434 

pass.^  But  where  a  purchaser  agrees  to  buy  land  at  a  cer- 
tain price  per  acre  after  the  making  of  a  survey,  and  a 
street  or  highway  is  mentioned  as  one  of  the  boundaries, 
he  is  compelled  to  pay  for  the  land  to  the  middle  of  the 
street,  where  no  contrary  intention  appears.^ 

§  1025.  Where  contrary  intention  appears. — The  rule 
given  in  the  preceding  section  is  one  of  construction  only, 
and,  of  course,  does  not  govern  when  it  appears  upon  the 
face  of  the  deed  that  the  intention  was  that  the  grantee 
should  take  to  the  line  of  the  street  or  stream,  and  not  to 

Freedley,  33  Pa.  St.  124;  75  Am.  Dec.  584;  Trutt  d.  Spotts,  87  Pa.  St. 
339;  Transue  v.  Sell,  105  Pa.  St.  604;  Firmstone  v.  Spaeter,  150  Pa.  St. 
616;  30  Am.  St.  Rep.  851;  25  Atl.  Rep.  41;  Spackman  v.  Steidel,  88  Pa. 
St.  453;  Dobson  v.  Hohenadel,  148  Pa.  St.  367;  23  Atl.  Rep.  1128;  Tay- 
lor V.  Armstrong,  24  Ark.  102;  Montgomery  v.  Hines,  134  Ind.  221;  33 
N.  E.  Rep.  1100;  Cox  v,  Louisville  N.  A.  &  C.  R.  R.  Co.,  48  Ind.  178; 
Hamilton  Co.  v.  Indianapolis  Natural  Gas  Co.,  134  Ind.  209;  Warbrit- 
ton  (•.  Demorett,  129  Ind.  346;  27  N.  E.  Rep.  730;  Terre  Haute  etc.  R. 
Co.  V.  Scott,  74  Ind.  29;  Haslett  v.  New  Albany  etc.  R.  Co.,  7  Ind.  App. 
603:  34  N.  E.  Rep.  845;  Herbert  v.  Rainey,  54  Fed.  Rep.  248;  Peabody 
Heights  Co.  v.  Sadtler,  63  Md.  533;  52  Am.  Rep.  519;  Terre  Haute  etc. 
R.  Co.  V.  Rodel,  89  Ind.  128;  46  Am.  Rep.  164;  Baltimore  etc.  R.  R. 

Co.  V.  Gould,  67  Md.  60;  Columbus  &  W.  Ry.  Co.  v.  Witherow,  82  Ala. 

190;  3  So.  Rep.  23;  Moore  v.  Johnston,  87  Ala.  220;  6  So.  Rep.  50; 

Chatham  v.  Brainerd,  11  Conn.  60;  Champlin  v.  Pendleton,  13  Conn.  23; 

Peck  V.  Smith,  1  Conn.  103;  6  Am.  Dec.  216;  Watrous  v.  Southworth, 

5  Conn.  305;  Gear  r-  Barnum,  37  Conn.  229;  Silvey  v.  McCool,  86  Ga.  1; 

12  S.  E.  Rep.  175;  Tousley  v.  Galena  M.  &  S.  Co.,  24  Kan.  328;  Hunt 

V.  Brown,  75  Md.  481 ;  Albert  v.  Thomas,  73  Md.  181;  Ellsworth  v.  Lord, 

40  Minn.  337;  42  N.  W.  Rep.  389;  Rich  v.  City  of  Indianapolis,  37  Minn. 

423-  5  Am.  St.  Rep.  861 ;  35  N.  W.  Rep.  2;  In  re  Robbins,  34  Minn.  99; 

57  Am.  Rep.  40;  Jacob  v.  Woolfolk,  90  Ky.  426;  14  S.  W.  Rep.  415; 

Hawesville  v.  Lander,  8  Bush,  679;  Salter  v.  Jonas,  39  N.  J.  L.  469;  23 

Am.  Rep.  229;  Ayres  v.  Penn.  Ry.  Co.,  52  N.  J.  L.  405;  Dodge  v.  Penn. 

Ry.,  43  N.  J.  Eq.  351. 

1  Grand  Rapids  &  Ind.  R.  R.  Co.  v.  Heisel,  38  Mich.  62;  31  Am.  Rep. 

^  Firmstone  v.  Spaeter,  150  Pa.  St.  616;  30  Am.  St.  Rep.  851.  If  the 
grantor  owns  the  fee  of  the  soil  of  the  highway,  the  presumption  is  that 
his  deed  carries  the  fee:  Haberman  v.  Baker,  128  N.  Y.  253.  That  it 
will  be  presumed  that  a  deed  conveying  land  bounded  by  a  street  will 
carry  the  fee  to  the  center,  see  Silvey  v.  McCool,  86  Ga.  1;  Florida  etc. 
Ry.  Co.  V.  Brown,  23  Fla.  104;  Matter  of  Ladue,  118  N.  Y.  213;  Low  v. 
Tibbetts,  72  Me.  92;  39  Am.  Rep.  303;  Warbritton  v.  Demorett,  129  Irid. 
346;  Salter  v.  Jonas,  39  N.  J.  L.  469;  23  Am.  Rep.  229. 


1435  DESCRIPTION.  g  1026 

its  center.  Thus,  where  one  line  of  the  description  is 
"thence  a/o/i^r  the  easterly  line"  of  a  certain  street,  a  certain 
distance,  and  no  other  language  is  employed  to  modify 
the  boundary,  the  grantee's  title  does  not  extend  to  the 
center  of  the  street.^  And  where  land  adjacent  to  a 
road  is  conveyed  by  a  description  beginning  "at  the  cor- 
ner formed  by  the  intersection  of  the  easterly  line"  of  the 
road  with  the  northerly  line  of  another  road,  and  ending 
"thence  along  the  easterly  line"  of  the  road  to  which  the 
land  was  adjacent,  the  land  conveyed  is  not  bounded  by 
the  center  of  the  road,  but  by  its  side.-  But  the  mere 
fact  that  a  monument  on  the  side  of  the  road  or  on  the 
bank  of  a  stream  is  mentioned  as  the  place  of  the  begin- 
ning or  end  of  a  line,  is  not  of  itself  sufficient  to  rebut 
the  presumption  that  the  grantee  takes  to  the  center  of 
the  road  or  to  the  thread  of  the  stream.*  The  intention 
may  be  gathered  from  the  language  of  the  description,  a3 
noticed  in  the  preceding  section,  where  the  land  conveyed 
is  bounded  by  the  line  of  the  street  instead  of  the  street 
itself.* 

§  1026.  Land  bounded  by  lake  or  pond. — If  the  land 
is  bounded  by  a  natural  lake  or  pond,  the  grantee's  titlo 
extends  to  low-water  mark.*     But  if  the  land  is   bounded 

»  Severy  v.  Central  Pacific  R.  R.  Co.,  51  Cal.  194. 

«  Mead  v.  Riley,  50  N.  Y.  Sup.  Ct.  20.  Ami  aec  Lou^'h  v.  Mnchlin,  40 
Ohio  St.  332;  Tag  v.  Keteltaa,  48  N.  Y.  Sup.  Ct.  241  ;  Kin^s  Cuutity  Firo 
Ins.  Co.  V.  Stevens,  87  N.  Y.  287;  41  Am.  Rep.  361 :  Cottle  v.  Youn^,  59 
Me.  105;  O'Connell  v.  Bryant,  121  Mass. 557 ;  Leo  v.  Lee.  27  Hilti,  1 ;  Peck 
V.  Denniston,  121  Mass.  17;  Murphy  v.  Copeiand.ol  Iuwa,515;  Bahcock 
V.  Utter,  1  Abb.  N.  Y.  App.  27;  DePcyster  v.  Mali,  27  Hun,  4.S9;  Kiwn- 
ing  V.  Ayling,  126  Mass.  404;  Smith  v.  Klocoinb,  9  (Jray,  IW;  09  Am.  Dec. 
274;  Brainerd  v.  Boston  etc.  R.  R.,  12 Gray,  407,  410;  Hanson  v.  Camp- 
bell. 20  .Md.  22.^;  Perrin  v.  New  York  Cent.  R.  K.,  40  I5arb.  (\'k 

"  Low  V.  Tibbetts,  72  Me.  92;  39  Am.  Rep.  :K)3.  And  hop  Hra.lford  v. 
Cresaey,  45  Me.  9;  Pollock  v.  Morris,  51  N.  Y.  Sup.  Ct.  (10  .lom-H  A  S.) 
112. 

*  Grand  Rapida  &  Ind.  R.  R.  Co.  v.  Heisel,  88  Mich.  (52;  31  Ani.  K.-p. 

306. 

*  King  V.  Young,  76  Me.  70;  49  Am.  Rep.  596;  Whoolor  v.  Spinola, 
54  N.  Y.  377;  West  lioxbury  v.  8to<ldard,  7  All.-n,  167;  St.'|.lionn  v. 
King,  76  Me.  197.  'See  Seaman  v.  Smith,  24  111.  621;  Bradley  v.  Rico, 


§  102G  DESCRIPTION.  1436 

by  an  artificial  pond,  the  grantee's  title  extends  to  the 
middle  of  the  pond/  A  deed  described  the  land  as 
bounded  on  a  certain  pond.  It  appeared,  however,  upon 
applying  the  deed  to  the  local  objects  embraced  within 
the  description  that  the  pond  was  a  natural  one,  which 
was  raised  to  various  heights  at  different  times  by  means 
of  a  dam  existing  and  in  use  at  the  time  of  the  execution 
of  the  deed.  The  court  held  that  there  was  a  latent  am- 
biguity in  the  deed,  and  that  it  was  competent  to  show  by 
parol  evidence  that  at  the  time  of  the  execution  of  the 
deed  a  certain  line  was  agreed  upon  and  understood  to 
be  the  boundary  of  the  pond.^ 

13  Me.  198;  29  Am.  Dec.  501;  Canal  Commissioners  v.  The  People,  5 
Wend.  423;  Champlin  etc.  R.  R.  Co.  v.  Valentine,  19  Barb.  484;  Austin 
V.  Rutland  R.  R.  Co.,  45  Vt.  215;  Hathorne  v.  Stinson,  12  Me.  183;  28 
Am.  Dec.  167.  When  land  is  bounded  by  a  river,  a  description  will  be 
construed  as  though  the  grantor  did  not  intend  to  retain  a  mere  narrow 
strip  between  the  land  conveyed  and  his  boundary  line,  where  there  was 
in  the  deed  no  express  provision  to  that  effect,  and  especially  when  it 
would  deprive  the  grantee  of  valuable  water  privileges :  Brown  Oil  Co. 
V.  Caldwell,  35  W.  Va.  95;  29  Am.  St.  Rep.  793. 

1  Hathorne  v.  Stinson,  1  Fairf.  238 ;  25  Am.  Dec.  228 ;  State  v.  Gil- 
manton,  9  N.  H.  461.  See  Lowell  v.  Robinson,  16  Me.  357;  33  Am.  Dec. 
671;  Smith  v.  Miller,  5  Mason,  196;  Mansur  v.  Blake,  62  Me.  38;  Rob- 
inson'r.  White,  42  Me.  209;  Cook  v.  McClure,  58  N.  Y.  437;  17  Am.  Rep. 
270;  Wood  v.  Kelley,  30  Me.  55;  Phinney  v.  Watts,  9  Gray,  269;  69  Am. 
Dec.  288:  Ledyard  v.  Ten  Eyck,  36  Barb.  102;  Fletcher  v.  Phelps,  28 
Vt.  257. 

="  Waterman  v.  Johnson,  13  Pick.  261.  The  opinion  was  delivered  by 
Chief  Justice  Shaw,  who  said:  "  The  rule  is  clear,  that  where  the  par- 
ties make  any  definite  agreement  in  their  deed,  such  agreement  will  con- 
trol any  legal  implication.  But  where  general  terms  are  used  in  a 
description,  the  court  will  put  a  construction  upon  those  terms,  where 
any  definite  rule  has  been  established,  and,  in  such  case,  parol  evidence 
will  not  be  admissible  to  control  the  legal  effect  of  such  description,  any 
more  than  to  control  the  plain  meaning  or  legal  effect  of  any  clause  or 
stipulation  contained  in  a  deed.  As  where  the  deed  bounds  the  prem- 
ites  upon  the  sea  or  salt  water,  the  legal  effect  is  to  give  a  title  to  the 
soil,  subject  to  certain  limitations,  to  low-water  mark,  such  being  the 
legal  construction  put  upon  this  description  by  the  colony  ordinance 
and  by  usage.  So  if  the  premises  conveyed  are  bounded  on  a  river  not 
navigable,  the  grant  extends,  by  legal  operation,  to  the  filum  agues  or 
thread  of  the  river,  though  in  both  these  cases  the  parties,  if  they 
think  fit,  may  limit  their  grants  by  definite  language,  so  as  to  give  them 
a  different  operation,  and  thus  exclude  the   flats  or  the  bed  of  the  river 


1437  DESCRIPTION.  §  1026  a 

§  1026  a.  Effect  of  meander  lines. — The  ohject  of  a  me- 
ander line  is  to  show  the  general  course  of  the  stream,  and 
is  not  to  be  construed  as  limiting  the  boundary  line  so  as 
to  prevent  it  running  as  far  as  it  would  run  if  the  stream 
itself  was  named  as  a  boundary.  The  purpose  of  such  lines 
is  well  explained  in  the  language  of  Mr.  Justice  Clifford: 
"Meander  lines  are  run  in  surveying  fractional  portions 
of  the  public  lands  bordering  upon  navigable  rivers,  not 
as  boundaries  of  the  tract,  but  for  the  purpose  of  defining 
the  sinuosities  of  the  bank  of  the  stream,  and  as  the  means 
of  ascertaining  the  quantity  of  the  land  in  the  fraction 
subject  to  sale,  and  which  is  to  be  paid  for  by  the  pur- 
chaser."^    Or  to  quote  the  language  of  Mr.  Justice  Dillon: 

in  the  above  cases  respectively.  But  where  a  description  is  employe<l 
which  has  not,  by  statute,  usage,  or  judicial  decision,  acquired  a  lixed 
legal  construction,  or  a  boundary  is  referred  to  whicli  is  fluctuating  and 
variable,  other  means  must  be  resorted  to  in  order  to  ascertain  the  mean- 
ing and  construction  of  the  deed.  Now  the  word  '  pond'  is  indelinite. 
It  may  mean  a  natural  pond,  or  an  artificial  pond  raised  for  mill  pur- 
poses, either  permanent  or  temporary,  and  in  both  cases  the  limits  of 
such  body  of  water  may  vary  at  different  times  and  seasons,  by  use  or 
by  natural  causes,  and  where  the  one  or  the  other  is  adopted  as  a  de- 
scriptive limit  or  boundary,  a  different  rule  of  construction  may  apply. 
A  large  natural  pond  may  have  a  definite  low-water  line,  and  then  it 
would  seem  to  be  the  most  natural  construction,  and  one  wiiicli  would 
be  most  likely  to  carry  into  effect  the  intent  of  the  parties,  to  hold  that 
land  bounded  upon  such  a  pond  would  extend  to  low-water  line,  it  l)eing 
presumed  that  it  is  intended  to  give  to  the  grantee  the  beiielit  of  the 
water,  whatever  it  may  be,  which  he  could  not  have  upon  any  other 
construction.  Where  an  artificial  pond  is  raised  by  a  darn,  awi-lliti;:  a 
stream  over  its  banks,  it  would  be  natural  to  presume  that  a  grant  of 
land  bounding  upon  such  a  poud  would  cxti-nd  to  the  thread  of  the 
stream  upon  which  it  is  raised,  unless  the  pond  had  l)een  ho  long  kept 
upas  to  become  permanent,  and  to  have  acquired  another  well-deflneil 
boundary.  But  it  is  difficult  to  apply  either  of  these  ruleH  t*)  the  pren- 
ent  case,  which  is  that  of  a  pond  originally  natural,  but  which  Iuih  In-en 
raised  more  or  less  by  artificial  means.  The  discovery  of  thiH  fact,  u|Kjn 
applying  the  deed  to  the  local  objects  embraced  within  its  tlthcriplivo 
terms,  discloses  a  latent  ambiguity.  According  to  a  well-establiHhed 
rule  of  evidence,  therefore,  it  is  competent  to  resort  to  |>arol  proof,  hIiow- 
ing  all  the  circumstances  from  which  a  legal  inference  can  Ik?  drawn, 
that  one  or  another  line  was  intendc<l  by  tlw  ambigiiouM  dpHcription 
used  in  the  deed.  And  this  is,  in  truth,  what  both  ]>ttrtie8  have  done  in 
the  present  case." 

*  Railroad  Co.  v.'  ychurmcr,  7  W  all.  liTli;  Jefferis  v.  Eaat  Omaha  Land 


§  1027  DESCRIPTION.  1438 

"The  plaintiff's  theory  seems  to  be  that  defendant  is  only- 
entitled  to  the  quantity  of  land  called  for  in  the  patent 
and  shown  on  the  plat;  that  the  grant  is  limited  to  the 
meandered  line.  This  is  an  error.  The  grantee  gets 
all  down  to  the  river,  be  it  more  or  less.  The  line  is 
meandered  chiefly  to  obtain  the  quantity,  and  the  meander 
line  is  not  a  line  of  boundary."*  The  principle  is  so  well 
established  that  it  would  serve  no  good  purpose  to 
elaborate  it.  Some  of  the  cases  in  which  it  has  been  ap- 
plied will  be  found  in  the  note.^ 

§  1027.  Estoppel  from  description  of  land  as  bounded 
by  a  street. — Where  the  deed  describes  the  premises  as 
fronting  a  certain  number  of  feet  on  a  street,  the  grantor 
and  all  claiming  under  him  are  estopped  from  subse- 
quently asserting  that  the  street  mentioned  in  the  deed 
did  not  extend  in  front  of  the  premises.*  In  such  a  case 
the   grantee  is  entitled  to  have  the  street  kept  open  for 

Co.,  134  U.  S.  178.  In  Harden  v.  Jordan,  140  U.  S.  371,  the  court  say: 
"  It  has  never  been  held  that  the  lands  under  water,  in  front  of  such 
grants,  are  reserved  to  the  United  States,  or  that  they  can  be  afterward 
granted  out  to  other  persons,  to  the  injury  of  the  original  grantees.  The 
attempt  to  make  such  grants  is  calculated  to  render  titles  uncertain,  and 
to  derogate  from  the  value  of  natural  boundaries,  like  streams  and  bodies 
of  water."  In  the  case  just  cited  the  court  held  that  the  ruling  of  the 
Supreme  Court  of  Illinois  in  Trustees  of  Schools  v.  SchroU,  120  111.  509, 
60  Am.  Eep.  575,  that  a  grant  of  lands  bounded  by  a  lake  or  stream 
does  not  extend  to  the  center,  was  not  essential  to  the  decision  of  the 
case,  was  opposed  to  the  previous  decisions  in  that  State,  and,  hence,  it 
was  disregarded.     See,  also,  Mitchell  v.  Smale,  140  U.  S.  406. 

1  Kraut  V.  Crawford,  18  Iowa,  549;  87  Am.  Dec.  414.  See,  also,  Mus- 
ser  V.  Hershey,  42  Iowa,  364. 

2  Schurmeier  v.  St.  Paul  R.  R.  Co.,  10  Minn.  82;  88  Am.  Dec.  59 ;  Ful- 
ler V.  Dauphin,  124  111.  542;  7  Am.  St.  Rep.  388;  Middleton  v.  Pritchard, 
3  Scam.  510;  38  Am.  Dec.  112;  Bruce  v.  Taylor,  2  J.  J.  Marsh.  160; 
Chandos  v.  Mack,  77  Wis.  573;  20  Am.  St.  Rep.  139;  Minto  v.  Delaney, 
7  Or.  342;  Ladd  v.  Osborne,  79  Iowa,  93;  Sphung  v.  Moore,  120  Ind.  352; 
Brown  v.  Huger,  21  How.  320;  Yates  v.  Van  de  Bogert,  56  N.  Y.  526; 
Churchill  v.  Grundy,  5  Dana,  100;  Oakes  v.  De  Lancey,  133  N.  Y.  227 ;  28 
Am.  St.  Rep.  628. 

»  White  V.  Smith,  37  Mich.  291;  Smith  v.  Lock,  18  Mich.  56;  Parker 
V.  Smith,  17  Mass.  413;  9  Am.  Dec.  157.  See  Transue  v.  Sell,  105  Pa.  St. 
604,  and  cases  cited. 


1439  DESCRIPTION.  §  1027 

his  accommodation  in  tlie  enjoyment  of  his  property.^ 
But  a  description  in  a  deed  of  land  bounded  by  a  street, 
is  not  equivalent  to  a  covenant  of  the  existence  of  a 
street  of  the  same  width  as  a  street  of  that  name, 
when  such  street,  though  graded  and  laid  out  in  a  plan 
published  by  the  former  owner  of  the  property,  has  sub- 
sequently been  closed  and  plowed  up.  Such  a  descrip- 
tion  under  these  circumstances  amounts  only  to  a  covenant 
of  the  existence  of  a  way  of  reasonable  width  necessary 
and  convenient  for  the  use  of  the  grantee  in  the  use  of 
the  land  conveyed.^  A  grantor  in  a  deed  bounding  the 
land  on  a  private  way  not  defined  in  the  deed,  but  shown 
upon  a  plan  referred  to  in  the  deed,  and  recorded  in  the 
registry  of  deeds,  is  estopped  to  deny  the  existence  of 
such  way.^  If  the  land  conveyed  is  bounded  by  an  alley, 
the  alley  when  closed  reverts  to  the  owners  adjoining.* 

^  Smith  V.  Lock,  18  Mich.  56;  Farming  v.  Osborne,  34  Hun,  121.  In 
Smith  V.  Lock,  18  Mich.  56,  the  description  of  the  premises  sold  was; 
"Commencing  at  the  northeast  corner  of  the  M.  S.  Railroad  di-jKH 
grounds,  in  the  village  of  Burr  Oak,  thence  south  one  hundred  feet, 
thence  easterly  along  the  line  of  the  company's  ground  until  it  interHects 
the  creek,  thence  northerly  along  the  line  of  said  creek  until  it  inlersfcta 
the  line  of  Front  Street,  thence  westerly  along  said  line  of  saiti  street  to 
the  place  of  beginning."  The  grantor  claimed  afterward  tluit  Front 
Street  did  not  extend  along  the  front  of  this  lot,  and  sold  the  land  on 
the  north  side  of  the  lot  up  to  the  grantee's  line  to  anutiier  jKirty,  and 
the  latter  began  to  build  a  house  upon  the  land  whicii  he  thus  lx>iij?ht. 
A  bill  was  filed  to  obtain  a  perpetual  injunction,  and  it  was  not  dfniwl 
that  there  was  a  street  called  Front  Street  which  extendi'.!  to  the 
grantee's  lot  on  the  west,  and  which  was  fifty  feet  in  witlth,  and  whi<-h, 
if  extended  in  front  of  the  lot  in  question,  w.)uld  include  the  h.inttw  that 
the  second  purchaser  was  biiiMing.  Tiie  court  hel<l  that  it  did  not  fol- 
low because  no  street  had  been  regularly  laid  out  or  dedinit«vl  to  tho 
public  in  front  of  the  grantee's  lot,  that  he  was  not  entitltvl  to  n«Ii«'f: 
that  it  was  a  matter  of  private  right,  and  was  not  affectcl  by  tin-  <|u«*fH 
tion  whether  the  public  had  acquired  a  right  of  way  or  not.  And  m.-e  IM 
Witt  V.  Van  Schoyk,  35  Hun,  103. 

»  Walker  v.  City  of  Worcester,  6  fJray,  54«. 

•  Fox  V.  Union  Sugar  Kefinery,  109  Mass.  2^»2;  Parkor  r.  Bonnott,  11 
Allen,  388;  Murdock  v.  Chapman,  9  Gray,  156;  Morgan  v.  M.M.r.'.  .'Mirny. 
319;  Lunt  v.  Holland,  14  Mass.  149;  Sheen  r.  Stothart.  2?)  La.  Ann.  iVM); 
Davis  V.  Rainsford,  17  Mass.  207.  And  see  Tolxsy  v.  Taunton,  119  .M.iHB. 
404;  Stetson  v.  Dow,  16  Gray,  372. 

*  Cincinnati  &  Georgia  R.R.Co.  v.  Mime,  71  Ga.  240;  Hraley  r.  I'.<vl>- 

bitt,  14  R.  1.  533. 


§§  1028, 1028  a  description.  1440 

§  1028.  ^Navigable  streams  and  tide-waters. — The  rule 
where  land  is  bounded  by  navigable  streams  or  tide-waters 
is,  that  the  grantor's  right  extends  only  to  high-water 
mark.^  In  a  case  in  Connecticut,  Mr.  Justice  Daggett 
said:  "The  doctrine  of  the  common  law  is,  that  the  right 
to  the  soil  of  the  proprietors  of  land  on  navigable  rivers 
extends  only  to  high-water  mark ;  all  below  is  publici 
juris — in  the  king.  In  England.  That  is  the  law  in  Con- 
necticut; for  we  have  no  statute  abrogating  it.  It  was 
the  law  brought  by  our  ancestors;  it  is  our  law;  the  soil 
being  not  indeed  owned  by  the  king,  but  by  the  State." ^ 
In  a  technical  sense,  arms  of  the  sea,  and  rivers  which 
flow  and  refiow  with  the  tide,  are  said  to  be  navigable. 
But  generally,  in  this  country,  all  rivers  which  are  in  fact 
navigable  are  considered  to  be  such.' 

§  1028  a.  Reason  for  these  rules. — The  natural  pre- 
sumption where  a  deed  conveys  land  bordering  on  a  stream 
or  highway  is,  that  the  grantor  means  to  convey  what  he 
owns,  and  not  to  reserve  a  strip  of  land  of  no  value  to 
him,  but  the  loss  of  which  to  the  grantee  might  be  pro- 
ductive of  great  injury.  He  has  power  by  apt  words  to 
reserve  what  and  as  much  as  he  pleases,  or  so  to  frame 
the  language  of  his  conveyance  as  to  limit  the  land  con- 
veyed to  the  line  of  the  stream  or  highway,  without  ex- 
tending further,  and,  in  all  such  cases,  courts  are  bound 
to  give  effect  to  his  expressed  intention.  But  in  the  ab- 
sence of  words  showing  such  an  intention,  it  is  not  pre- 
sumed that  the  grantor  intended  to  retain  in  himself  the 
fee  to  the  street  or  stream  when  he  has  parted  with  the 
adjoining  land.  Therefore  it  may  be  said  to  be  a  uni- 
versal rule,  that  a  deed  giving  a  stream  as  a  boundary 

1  Tomlin  v.  Dubuque  etc.  R.  R.  Co.,  32  Iowa,  106;  7  Am.  Rep.  176; 
Middleton  v.  Pritchard,  3  Scam.  520;  38  Am.  Dec.  112;  Adams  v.  Pease, 
2  Conn.  481 ;  McManus  v.  Carmichael,  3  Iowa,  1 ;  Haight  v.  The  City  of 
Keokuk,  4  Iowa,  199;  Canal  Commissioners  v.  Tlie  People,  5  Wend.  423; 
Mayhew  v.  Norton,  17  Pick.  357 ;  28  Am.  Dec.  300 ;  Barney  v.  City  of 
Keokuk,  4  Cent.  L.  J.  491. 

^  Chapman  t;.  Kimball,  9  Conn.  38;  21  Am.  Dec.  707. 

*  See  term  "Navigable,"  Bouvier  Law.  Diet. 


1-141  DESCRIPTION.  §  102S  a 

will  convey  title  to  the  center  of  the  stream  or  to  low  or 
high  water  mark,  depending  upon  how  far  the  grantor's 
title  extends.  By  such  a  description  the  grantor  will 
convey  all  that  he  owns,  unless  a  contrary  intent  appears 
from  the  language  of  the  deed.^  The  deed  is  taken  most 
strongly  against  the  grantor  in  the  application  of  this 
rule,  and  courts  will  not  favor  the  presumption  that  he 
has  retained  title  to  the  bed  of  the  stream."  Where  title 
passes  to  the  thread  of  the  stream,  it  will  include  an 
island  lying  between  the  thread  of  the  stream  and  the 
land  abutting  the  stream.'  So  islands  are  included 
which  are  separated  from  the  mainland  by  sloughs.*  A 
water  line  given  as  the  boundary  of  a  lot  remains  the 
boundary,  however  it  may  shift,  and  land  up  to  such  shift- 
ing water  line  is  conveyed  by  a  deed  describing  the  lot 
by  its  number.  When  accretion  occurs,  the  water  lino 
continues  to  be  the  boundary  when  named  as  sucli,  and  a 
deed  passes  title  to  all  land  extending  to  the  water  line.' 
Where  land  is  described  as  beginning  on  the  west  bank 
of  the  creek,  "thence  follow  said  west  bank  on  a  general 

1  Norcross  v.  Griffitlis,  65  Wis.  610;  Chandoa  v.  Mack,  77  Wis.  573; 
20  Am.  St.  Rep.  139;  Moody  v.  PalniL-r,  50  Cal.  31;  Williainsburj,'!! 
Boom  Co.  V.  Smith,  84  Ky.  375;  Watson  v.  Peters,  26  Mich.  508;  McCul- 
lough  V.  Wall.  4  Rich.  08;  53  Am.  Dec.  715;  Morrison  v.  Keen,  3(iroenl. 
474;  Sleeper  v.  Laconia,  60  N.  II.  201 ;  49  Am.  Ke-p-  -^H  ;  Hrown  Oil  Co. 
V.  Caldwell,  35  W.  Va.  95;  29  Am.  St.  Rep.  793;  Middleton  t;.  rritcliard, 
3  Scam.  510;  .38  Am.  Dec.  112;  Boston  v.  Richardson,  105  M:i.mh.  :{.51  ; 
Doanev.  Willicutt,  5  Gray,  328;  Mayhew  r.  Norton,  17  Pick,  im;  28 
Am.  Dec.  300;  Lampish  v.  Bangor  Bank,  8  Greenl.  85;  Wins^low  r.  i'at- 
ten,  34  Me.  25;  Chapman  v.  Edmamls,  3  Allen,  512;  IV-rry  r.  Snyder,  3 
Bush,  266;  96  Am.  Dec.  219;  Lowell  v.  Robiiiflon,  16  Me.  357;  33  .Am. 
Dec.  671;  Harlow  v.  Fisk,  12  Cuah.  304;  Williams  v.  Biiclmnan,  1  Irwl. 
635;  35  Am.  Dec.  760;  Warren  r.  Thomaston,  75  Mo.  329;  46  Am.  R««p. 
397;  Oakes  v.  De  Lancey,  133  N.  Y.  227;  28  Am.  St.  Rt-p.  62H;  Diinlaj) 
V.  Stetson,  4  Mason,  336;  Moore  r.  <;ri(Iin,22  Me.  350;  ThomnH  r.  lliiloh, 
3  Sum.  178;  Brown  v.  Ha^er,  21  How.  .".06. 

"  Palmer  v.  Farrell,  129  Pa.  St.  162;  15  Am.  St.  Rep.  708;  Brown  Oil 
Co.  V.  Caldwell,  35  W.  Va.  95;  29  Am.  St.  Rc-p.  7U3;  lloldcn  v.  Chand- 
ler, 61  Vt.  291. 

»  ChandoB  v.  Mack,  77  Wis.  573;  20  Am.  St.  P.rp.  ]^9. 

*  Fuller  v.  Dauphin,  124  111.  542;  7  Am.  St.  Hep.  388. 

*  Jeffries  v.  East  Omaha  Land  Co.,  134  U.  S.  178. 

LlKKWJ,  Vou  11.—  91 


§  1028  b  DESCRIPTION.  1442 

course  of  north,  four  degrees  twenty-four  minutes  west," 
the  grantee  takes  the  land  to  the  margin  of  the  creek  at 
low-water  mark,  notwithstanding  a  survey  of  tlie  land 
by  courses  and  distances,  set  out  in  the  deed,  would  not 
extend  the  line  to  the  creek.  The  creek  is  a  natural 
monument,  and  will  prevail  over  the  courses  and  dis- 
tances.^ 

§  1028  b.  Presumption  overcome  only  by  actual  res- 
ervation.— The  presumption  mentioned  in  the  preceding 
section  can  be  overcome  only  by  an  actual  reservation  in 
the  deed,  or  by  facts  evincing  an  intention  to  limit  the 
land  conveyed  to  the  precise  boundaries  of  the  description. 
Hence,  if  a  grantor  describes  lands  by  metes  and  bounds, 
which  include  the  whole  of  the  bank  of  the  stream,  ex- 
tending the  whole  distance  of  the  part  conveyed,  the  pre- 
sumption is  that  he  intended  to  convey  all  his  interest  in 
the  bed  of  the  stream,  lying  in  front  of  the  land  con- 
veyed,  although    no    reference  is   made  to   the  stream.'^ 

1  Yates  V.  Van  de  Bogert,  56  N.  Y.  526. 

»  Norcross  v.  Griffiths,  65  Wis.  599;  56  Am.  Rep.  642.  The  court 
states  the  reasons  for  this  rule  in  the  language  of  Justice  Redfield  in  the 
case  of  Buck  v.  Squires,  22  Vt.  484,  494:  "  The  rule  itself  is  mainly  one 
of  policy,  and  one  which  to  the  unprofessional  might  not  seem  of  the 
first  importance;  but  it  is,  at  the  same  time,  one  which  the  American 
courts,  especially,  have  regarded  as  attended  with  very  serious  conse- 
quences when  not  rigidly  adhered  to,  and  its  chief  object  is  to  prevent 
the  existence  of  innumerable  strips  and  gores  of  land  along  the  margins 
of  streamsand  highways,  to  which  the  title  for  generations  shall  remain  in 
abeyance,  and  then,  upon  the  happening  of  some  unexpected  event,  and 
one  consequently  not  in  express  terms  provided  for  in  the  title  deeds,  a 
bootless,  almost  objectless,  litigation  shall  spring  up  to  vex  and  harass 
those  who,  in  good  faith,  had  supposed  themselves  secure  from  such  em- 
barrassment. It  is,  as  I  understand  the  law,  to  prevent  the  occurrence  of 
just  such  contingencies  as  these,  that  in  the  leading,  best  reasoned,  and 
best  considered  cases  upon  the  subject,  it  is  laid  down  and  fully  established 
that  courts  will  always  extend  the  boundaries  of  land,  deeded  as  extending 
to  and  along  the  sides  of  highways  and  fresh  water  streams  not  naviga- 
ble, to  the  middle  of  such  streams  and  highways,  if  it  can  be  done  with- 
out manifest  violence  to  the  words  used  in  the  conveyance,  and  to  have 
this  rule  of  the  least  practical  importance  to  cure  the  evil  which  it  is 
adopted  to  remedy,  it  must  be  applied  to  every  case  where  there  is  not 
expressed  an  evident  and  manifest  intention  to  the  contrary — one  from 
which  no  rational  construction  can  escape.     The  rule,  to  be  of  any  prac- 


1443  DESCRIPTION.  §102Sb 

But  where  a  description  in  a  statute  is  "  to  the  channel  of 
George's  river,  thence  down  said  channel  till  it  intersects 
the  town  line,  where  it  crosses  the  George's  river"— the 
boundary  line  is  the  thread  of  the  channel.  "  The  chan- 
nel," said  the  court,  "is  the  deepest  part  of  the  river.  It 
is  the  navigable  part— the  water-road  over  which  vessels 
pass  and  repass.  It  is  the  highway  of  commerce.  Had 
the  line  run  to  the  river  and  down  the  river,  the  bound- 
ary  would  have  been  the  bed  of  the  stream — the  filinn 
aquse.  But  the  thread  of  a  stream  is  the  middle  line  be- 
tween the  shores,  irrespective  of  the  depth  of  the  chan- 
nel, taking  it  in  the  natural  and  ordinary  stage  of  the 
water.  The  channel  and  the  thread  of  the  river  are  en- 
tirely different.  The  channel  may  be  one  side  of  tiie 
thread  of  the  river  or  the  other."*  Where  a  city  is  divided 
into  lots  and  the  lots  are  conveyed  by  numbers,  a  deed  of 
those  lying  along  a  stream  will  carry  the  grantor's  title  to 

tical  utility,  must  be  pushed  somewhat  to  the  extreme  of  ordinary  rules 
of  constructi'in,  so  as  to  apply  to  all  cases,  wheu  there  is  not  a  ck-arly 
expressed  intention  in  the  deed  to  limit  the  conveyance  short  of  the 
middle  of  the  stream  or  highway.  If  it  is  only  to  be  applied  like  the 
ordinary  rules  of  construction  as  to  boundary,  eo  as  to  reach  as  far  as 
may  be  the  clearly  formed  idea  in  the  mind  of  the  grantor  at  the  time 
of  executing  the  deed,  it  will  ordinarily  be  of  no  utility  as  a  rule  of  ex- 
pediency or  policy;  for  in  ninety-nine  cases  in  every  hundred  the  par- 
ties at  the  time  of  the  conveyance  do  not  esteem  the  land  covered  by  the 
highway  of  any  importance  either  way;  hence  they  use  words  naturally 
descriptive  of  the  prominent  ideas  in  thi'ir  minds  at  tlic  tinu-,  and  in 
doing  so  define  Ou  line  whiih  it  is  experled  the  pnrty  viU  orrupij  nud 
improve."  See,  also,  Jones  v.  Puttibone,  2  Wis.  :{08;  Yates  r.  ,Iu<l<l,  '2.0 
Wi«.  425;  Walker  v.  .Shei)ar<lHon,  4  Wis.  480;  65  Am.  Dec.  324;  Kurd  r. 
C.  &N.  W.  R.  Co.,  14  Wis.  6n!i;  80  Am.  Dec.  791;  Kiniluill  r.  KunoHJia, 
4  Wis.  321;  (lOve  v.  White,  20  Wis.  425;  Wisconsin  II.  Imp.  V^^.  v. 
Lyons,  30  Wis.  61;  Wright  v.  Day,  33  Wis.  2*W;  lVttil><)ne  v.  II:iniilt<.n, 
40  Wis.  402;  Kneeland  v.  Van  Valkenburgh,  46  Wis.  4.{7 ;  32  Am.  K«p. 
719;  Smith  v.  Ford,  48  Wis.  163;  Valley  P.  &  P.  Co.  v.  WeHt.  58  Wi«. 
.509;  ISIariner  v.  Schulte,  13  Wis.  692;  Eison  v.  Mi-rrill,  42  Wis.  203; 
lioorraan  v.  Sunnurhs,  42  Wis.  233;  Young  v.  Ilarrinon,  6  Ga.  130;  Ar- 
nold V.  Elmore.  16  Wis.  509;  Moses  v.  P^agle  A  P.  Mfg.  Co..  62  (in.  4.'^. 
1  Warren  r.  Thomaston,  76  Me,  32<);  4*1  Am.  Kep.  397.  The  thn-ail 
of  the  stream  is  a  line  equally  distant  from  tin-  two  bankH  at  tin-  urdi- 
nary  stage  of  the  water:  Boscawen  v.  CauLorbury,  23  ^.  11.  Ibb;  Hop- 
kins V.  Dickinson,  9  Ouah.  662. 


§  1029  DESCRIPTION.  1444 

the  land  lying  between  the  lot  and  the  thread  of  the  stream.^ 
But  if  a  deed  conveying  a  specified  number  of  acres  of 
a  block  adjoining  a  street,  transfers  title  to  the  center 
of  the  street,  it  is  not  a  necessary  conclusion  that  this 
number  of  acres  is  to  be  estimated  by  extending  the  line 
to  tlie  center  of  the  street.  If  the  blocks  are  uniform  in 
size,  as  four-acre  blocks,  for  instance,  and  a  deed  describ- 
ing them  as  such  conveys  the  north  two  acres  of  a  block, 
it  practically  conveys  the  north  half  of  the  block,  exclud- 
ing the  street,  and  especially  so  if  the  deed  describes  a 
right  of  way  over  another  portion  of  the  same  block.^ 

§  1029.  Courses  and  distances  controlled  by  monu- 
ments.— If  there  is  a  conflict  between  them,  the  courses 
and  distances  given  in  the  description  must  yield  to  the 
monuments.^      "  It  is   a  general    principle,"   says   Chief 

1  Mariner  v.  Schulte,  13  Wis.  775;  Watson  v.  Peters,  26  Mich.  508; 
Trustees  v.  Haven,  11  111.  554.  Where  the  word  "shore"  is  used  as  a 
boundary,  the  decisions  are  not  uniform  as  to  the  construction  to  be 
given  to  it.  By  some  decisions  the  grantee  takes  to  low-water  mark : 
Stevens  w.  King,  76  Me.  197;  49  Am.  Rep.  609;  Child  v.  Starr,  4  Hill, 
369.  A  deed,  on  the  other  hand,  giving  a  boundary  as  "  running  to  the 
river,  and  thence  on  the  river  shore"  was  held  to  convey  land  to  the 
center  of  the  stream :  Sleeper  v,  Laconia,  60  N.  H.  201 ;  49  Am.  Eep.  311. 
And  see  Starr  v.  Child,  20  Wend.  149;  Woodman  v.  Spencer,  54  N.  H. 
507;  Low  v.  Tibbitts,  72  Me.  92;  39  Am.  Eep.  303. 

2  Fraser  v.  Ott,  95  Cal.  661. 

«  TurnbuU  v.  Schroeder,  29  Minn.  49 ;  Watson  v.  Jones,  85  Pa.  St.  117 ; 
Burkholder  v.  Markley,  98  Pa.  St.  37;  Ayers  v.  Watson,  113  U.  S.  594; 
Ellis  V.  Hunnicutt,  71  Ga.  637 ;  Hurley  i;.  Morgan,  1  Dev.  &  B.  425;  28  Am. 
Dec.  579 ;  Hall  v.  Powel,  4  Serg.  &  R.  456 ;  8  Am.  Dec.  722;  Ripley  t).  Berry, 
5  Greene,  24;  17  Am.  Dec.  201 ;  Den  v.  Graham,  1  Dev.  &  B.  76 ;  27  Am. 
Dec,  226;  Davis  v.  Rainsford,  17  Mass.  207;  Adams  v.  Alkire,  20  W.  Va. 
480 ;  Daggett  v.  Willey,  6  Fla.  482 ;  Welder  v.  Hunt,  34  Tex.  44 ;  Credle  v. 
Hays,  88  N.  C.  321 ;  Coles  v.  Wooding,  2  Pat.  &  H.  189 ;  Beaudry  v.  Doyle, 
8  West  C.  Rep.  2S9;  Lewis  v.  Lewis,  4  Or.  177;  Bolton  v.  Eggleston,  61 
Iowa,  163;  Simonton  v.  Thompson,  55  Ind.  87;  Benton  v.  Horsley,  71  Ga. 
619;  Brown  v.  Huger,  21  How.  305;  Woodward  v.  Nims,  130  Mass.  70; 
Kronneberger  v.  Hoffner,  44  Mo.  185;  Haynes  v.  Young,  36  Mo.  557; 
Hogans  v.  Carruth,  19  Fla.  84 ;  Evansville  v.  Page,  23  Ind.  527 ;  Keenan  v. 
Cavanaugh,  44  Vt.  268;  Oarville  v.  Hutchins,  73  Me.  227;  Cottingham  v. 
Parr,  93  111.  233 ;  Kellogg  v.  Mullen,  45  Mo.  571 ;  Walsh  v.  Hill,  38  Cal.  481 ; 
Morse  v.  Rogers,  118  Mass.  572;  Norfolk  Trust  Co.  v.  Foster,  78  Va.  413; 
West  V.  Shaw,  67  N.  0.  494;  Marsh  v.  Mitchell,  25  Wis.  706;  Husbands 
V.  Semples,  13  Mo.  App.  5S9;  Thomson  v.  Wilcox,  7  Lans.  376;  Park  v. 


1445  DESCRIPTION.  g   1025 

Justice  Marshall,  "that  the  course  and  distance  must  yield 
to  natural  objects  called  for  in  the  patent.  All  lands  are 
supposed  to  be  actually  surveyed,  and  the  intention  of  the 
grant  is  to  convey  the  land  according  to  that  actual  sur- 
vey; consequently,  if  marked  trees  and  marked  corners 
be  found  conformably  to  the  calls  of  the  patent,  or  if 
watercourses  be  called  for  in  the  patent,  or  mountains,  or 
any  other  natural  objects,  distances  must  be  lengthened 
or  shortened,  and  courses  varied,  so  as  to  conform  to 
those  objects.  The  reason  of  the  rule  is,  that  it  is  the 
intention  of  the  grant  to  convey  the  land  actually  sur- 
veyed, and  mistakes  in  courses  and  distances  are  more 
probable  and  more  frequent  than  in  marked  trees, 
mountains,  rivers,  or  other  natural  objects  capable  of 
being    clearly    designated    and    accurately    described."  * 

Pratt,  38  Vt.  552 ;  Riddlesburg  etc.  Coal  Co.  v.  Rogera,  65  Pa.  St.  416 ;  Tyler 
V.  Fickett,  73  Me.  410;  Cunningham  v.  Curtis,  57  N.  H.  157;  Winans  t>. 
Cheney,  55  Cal.  567 ;  Howe  v.  Bass,  2  Mass.  380;  3  Am.  Dec.  59;  Ix)dge  v. 
Barnett,  46  Pa.  St.  477 ;  Wendell  v.  Jackson,  8  Wend.  183 ;  22  Am.  Dec.  635 ; 
Brand  v.  Daunoy,  8  Martin,  N.  S.,  159;  19  Am.  Dec.  176;  Frosty.  Spauld- 
ing,  19  Pick.  445;  31  Am.  Dec.  150;  McPherson  r.  Foster,  4  Wash.  C.  C. 
45;  Harris  v.  Hull,  70  Ga.  831;  Ciiley  v.  Childs,  73  Me.  130;  Clamorjiau 
V.  Baden  etc.  R.  R.  Co.,  72  Mo.  139;  Sanborn  v.  Kico,  129  .Mass.  387;  Cud- 
ney  v.  Early,  4  Paige,  209;  Piercy  v.  Crandall,  34  Cal.  334;  Sniitli  v.  Mc- 
Allister, 14  Barb.  434;  Bosworth  ».  Sturtevant,  2  Cush.  3',)2;  Town  v. 
Needham,  3  Paige,  546;  24  Am.  Dec.  246;  Uniuhart  r.  Burleson,  6  Tex. 
502;  Gavery  v.  Hinton,  2  Greene,  344;  People  v.  Law,  34  Barb.  494;  22 
How.  Pr.  109;  Nivin  v.  Stevens,  5  Har.  (Del.)  272;  .Mitchell  v.  Bunii-lt, 
22  Tex.  633;  Franklin  v.  Dorland,  28  Cal.  175;  87  Am.  Doc.  Ill ;  Miller  t-. 
Beeler,  25  III.  163;  Newman  v.  Foster,  4  Miss.  (3  How.)  .'W3;  34  Am. 
Dec.  98;  Colton  v.  Seavey,  22  Cal.  496;  Clark  v.  Wethey,  19  Wend.  320; 
Savers  v.  Lyons.  10  Iowa,  249;  Woods  c.  Kennedy.  5  Mon.  174 ;  Van  Wyck 
V.Wright,  18  Wend.  157;  Nelson  v.  Hall,  1  Mclx'an,5l8;  Nicholn  r.  Tur- 
ney,  15  Conn.  101;  Carn{)l)ell  v.  Clark,  8  Mo.  5.'>3;  Clettvelund  v.  Smith, 
2  Story.  278;  Smith  v.  Do.lgc,  2  N.  H.  303;  Sumtor  v.  Hnicoy.  2  Buy, 
515;  Mas.sengill  v.  Boyles,  4  Humph.  205;  Call  v.  Barker,  12  Me.  (3  FairL) 
320;  Robint^on  »-.  Whit<-.  42  Me.  2<)9;  McGill  v.  SomerH,  15  Mo.  80;  Kuna 
V.  Manning,  11  Humph.  311;  I'eriiam  v.  Wi-ad,  6  Muhh.  131;  Aiken  r. 
Sanford,  5  .Mass.  494;  Gerriah  v.  Bearce,  11  Muhh.  193;  Jarkmtn  f.  ("amp, 
1  Conn.  605;  Mayhew  r.  Norton,  17  I'ick.  357;  28  Am.  Dec.  IKH).  Seo 
Piercy  v.  Crandall,  34  Cal.  334;  Benedict  r.  GaylonI,  11  C.nn.  332;  29 
Am.  Dec.  299;  Peay  v.  Briggn,  2  Mill.  Conat.  98;  12  Am.  Dec.  6.56;  11..H- 
tetter  v.  Los  Angeles  T.  Hy.  Co.,  108  Cal.  38. 

1  Mclver'b  Leaaee  v.  Walker,  9  Crancli,  173,  177.     An  U»  meauurement 


§  1029  DESCRIPTION.  1446 

An  action  was  brought  for  a  breach  of  covenant  of  war- 
ranty in  a  deed,  which  described  the  land  conveyed  as 
bounded  on  the  west  by  the  land  of  a  certain  person. 
The  distance  on  the  north  line  from  the  east  to  the  west 
end,  as  specified  in  the  deed,  extended  seventeen  feet  be- 
yond such  person's  northeast  corner,  and  the  distance  on 
the  south  line  extended  six  and  a  half  feet  beyond  such 
person's  southeast  corner,  so  that  by  measurement  the 
deed  included  a  strip  seventeen  feet  wide  at  the  north  end, 
and  six  and  a  half  feet  at  the  south  end,  and  this  strip 
was  at  the  time  of  the  execution  of  the  deed  in  the  pos- 
session of  such  third  person,  and  was  separated  from  the 
land  owned  by  the  grantor  by  a  shed  and  a  division  fence. 
It  was  held  that  the  shed  and  fence  constituted  monu- 
ments controlling  the  distances  in  the  deed,  and  hence 
that  there  was  no  breach  of  the  covenant  of  warranty.^ 
A  line  was  described  as  running  "  thence  westerly  includ- 
ing the  caiiadas  to  a  stake,  so  that  a  line  running  from 
thence  to  the  Dos  Pedros  will  pass  about  two  hundred 
yards  from  the  present  new  corral  of  the  said  Jose  Jesus 
Lopez."  It  was  held  that  the  monuments  should  control, 
although  they  determined  the  course  of  the  line  to  be 
northeasterly  instead  of  westerly.^  Where  a  natural  ob- 
ject is  one  of  the  monuments,  and  a  line  does  not  reach  it, 
the  line  must  be  extended  to  such  object,  and  the  distance 

of  land  bounded  on  one  side  by  a  meandering  stream,  see  Kimball  v. 
Semple,  25  Cal.  440;  Hicka  v.  Coleman,  25  Cal.  122;  85  Am.  Dec.  103; 
Fratt  ■!;.  Woodward,  32  Oal.  219;  91  Am.  Dec.  573;  Spring  zj.  Hewston, 
52  Cal.  442;  Hall  v.  Shotwell,  66  Cal.  379. 

1  Cunningham  v.  Curtis,  57  N.  H.  157.  And  see,  also,  Smith  v.  Neg- 
bauer,  42  N.  J.  L.  305 ;  Crampton  v.  Prince,  83  Ala.  246 ;  3  Am.  St.  Rep. 
718;  Andrew  v.  Watkins,  26  Fla.  390;  Cowles  v.  Reavis,  109  N.  C.  417; 
Adair  t).  White,  85  Cal.  314;  Northern  Ry.  Co.  v.  Jordan,  87  Cal.  23; 
Payne  v.  English,  79  Cal.  540;  Hubbard  v.  Dusy,  100  N.  C.  212;  Scott 
■y.  Pettigrew,  72  Tex.  321;  Jones  v.  Andrews,  72  Tex.  6;  McAninch  t;. 
Freeman,  69  Tex.  445;  King  t;.  Brigham,  19  Or.  560;  Morse  v.  Rollins, 
121  Pa.  St.  537;  Bloom  v.  Ferguson,  128  Pa.  St.  362;  Bushey  v.  Iron  Co., 
136  Pa.  St.  541 ;  Menasha  etc.  Co.  v.  Lawson,  70  Wis.  600.  Although 
the  monuments  were  never  seen  by  the  parties,  they  control  the  courses 
and  distances:  Anderson  v.  Richardson,  92  Oal.  623. 
a  Colton  V.  Seavey,  22  Cal.  496. 


1447  DESCRIPTION.  §  1029  a 

given  must  not  be  considered.^  When  a  call  is  from  one 
monument  to  another,  the  law  will  presume  that  a  straight 
line  was  intended.  But  this  presumption  does  not  arise 
where  it  is  evident  from  the  language  of  the  deed  that  a 
different  line  was  intended.-  If  the  call  in  the  deed  is 
from  a  monument  to  a  creek,  without  specifying  a  defi- 
nite point,  the  creek  is  not  to  be  considered  a  monument 
within  the  meaning  of  this  rule.^ 

§    1029  a.      Erroneous  description   in  incident  of  title. 

It  is  the  duty  of  courts  to  uphold  deeds  when  possible, 
and  where  a  question  arises  as  to  the  sufficiency  of  the 
form  of  the  deed  to  convey  the  land  intended,  the  fact 
that  an  incident  in  the  history  of  the  title  of  the  land  is 
erroneously  described  will  not  prevail  against  the  force 
of  metes,  bounds,  courses,  distances,  and  visible  monu- 
ments. In  the  interpretation  of  all  contracts,  the  object 
is  to  effectuate  the  intention  of  the  parties.-*  Where  the 
land  to  be  conveyed  was  described  as  "all  that  tract  or 
upper  island  of  land  called  Eden,"  and  was  then  described 
by  bounds,  courses,  and  distances,  which  did  not  embrace 
ail  the  island,  the  court  held  that  the  title  to  the  whole 
island   passed    by  the    deed.'^     If   the  land    is    described 

1  Strickland  v.  Draughan,  88  N.  C.  315;  Hojrans  r.  Carrutli,  19  Fia. 

84. 

2  Fratt  V.  Woodward,  32  Cal.  210;  91  Am.  Dec.  573. 
»  Fratt  V.  Woodward,  32  Cal.  219;  91  Am.  Dec.  673. 

♦  Sherwood  v.  WhitinK,  54  Conn.  330;  1  Am.  St.  Rep.  llfi.  In  tl.at 
case  the  oropertv  intended  to  be  conveyed  was  deHcrihcl  iih  "All  iho 
real  estate  of  Oran  Sherwoo<l,  dcccaHcd,  which  was  diHirih.ited  to  Frank- 
lin Sherwood  in  the  distribution  of  said  estate,  and  alt.-rward  ronvoyr.l 
to  me  by  said  Franklin  Sherwood,  by  sundry  deedH  as  reconled  in  l-air- 
field  land  n-cords."  As  a  matter  of  fact  Franklin  SIutwoo<I  ha-l  con- 
veyed  before  the  distribution  of  the  estate,  and  not  afterward,  and  had 
made  the  cmvevance  for  the  purposi.  of  concealinj?  the  pro|M^rty  from 
his  creditors,  ills  deed,  however,  describe.!  fully  the  land  conveyed. 
Suit  was  brought  to  compel  the  heirs  ..f  the  Kranlor  to  rxeculo  a  cor- 
rected deed,  but  the  court  held  that  it  required  no  correction. 

"  Lodge  V.  Lee,  6  Cranch.  237.     Sec,  for  further  iuHtJinces,  ^^orthl^g. 

ton  V.  Hilyer,  4  Mass.  HMi;  .lackscn  r.  l'.arringer.  15  .l.-hns.  471;  M.lvin 

\-.  Proprietors,  5  Met.  15;  38  Am.  Dec.  384 ;  (ate  ..  Thay.r.  3  Me    ,  I  ; 

Keith  ,;.  Reynolds;  3  Me.  393.  The  owner  of  a  faru.  conveyed  it  by  deed, 


§   1030  DESCRIPTION.  1448 

as  a  "homestead  farm,"  with  a  designation  of  the  number 
of  acres,  the  whole  parcel  will  pass,  although  it  contains 
twice  the  number  of  acres  mentioned/ 

§    1030.      When      courses     and      distances     prevail. — 

Where  the  monument  described  in  the  deed  cannot  be 
found,  and  neither  its  location  nor  existence  can  be 
proven,  the  location  of  the  land  must  be  determined  by 
the  other  parts  of  the  description.  If  the  land  is  de- 
scribed by  definite  and  distinct  boundaries  from  which  it 
may  be  located,  the  description  cannot  be  varied  or  con- 
trolled by  parol  evidence.^  If  one  of  the  lines  is  described 
as  running  a  certain  number  of  rods  to  a  stake  and  stones, 
and  there  is  no  such  monument,  the  end  of  the  line,  in 
the  absence  of  evidence  that  there  was  a  contrary  intent, 
is  to  be  determined  by  the  measurement.*  Where  the 
deed  shows  an  intention  to  convey  a  specific  quantity  of 
land,  and  this  exact  quantity  is  included  within  the 
courses  and  distances,  and  the  description  by  monuments 
embraces  a  larger  or  smaller  quantity,  the  former  descrip- 
tion will  prevail.*  When  the  deed  would  be  defeated  by 
applying  the  rule  that  iiionuments  control  courses  and 
distances,  and  when  the  rejection  of  a  call  for  a  monu- 
ment will  reconcile  other  parts  of  the  description  and 
leave  sufficient  to  identify  the  land,  the  rule  as  to  monu- 
ments will  not  be  enforced.^     Where  no  monuments  are 

which  described  it  as  "the  farm  on  which  I  now  live,  and  is  the  same 
which  was  deeded  to  me  by  J.  G.,  March  15,  1810,  reference  being  had 
to  said  deed.  The  deed  of  March  15,  1810,  did  not  include  a  lot  of  land 
which  had  formed  part  of  the  farm  for  forty  years,  but  it  had  been  con- 
veyed to  the  grantor  by  J.  G.  by  a  deed  dated  January  11,  1810,  and  the 
court  held  that  this  lot  was  conveyed  by  the  deed :  Hastings  v.  Hastings, 
110  Mass.  280. 

^  Andrews  v.  Pearson,  68  Me.  19.  See,  also,  Dwightw.  Tyler,  49  Mich. 
614;  Wiley  w.  Lovely,  46  Mich.  83;  Deacons  etc.  v.  Walker,  124  Mass. 
69 ;  Union  etc.  v.  Skinner,  9  Mo.  App.  189 ;  Green  Bay  etc.  v.  Hewitt,  55 
Wis.  96;  42  Am.  Rep.  701. 

«  Drew  V.  Swift,  46  N.  Y.  204;  Bagley  v.  Morrill,  46  Vt.  94. 

«  Wilson  V.  Hildreth,  118  Mass.  578. 

*  Higinbotham  v.  Stoddard,  72  N.  Y.  94;  Buffalo  etc.  R.  R.  Co.  «. 
Stigeler,  61  N.  Y.  348. 

*  White  V.  Luning,  93  U.  S.  514. 


l^-i9  DESCRIPTION.  §§  1031, 1031  a 

referred  to  in  the  deed,  and  none  are  intended  to  be 
erected,  the  distances  stated  in  the  description  mnst  gov- 
ern the  location.^ 

§   1031.      Latent  ambiguity  as  to  monument  intended. 

There  may  be  cases  where  there  is  a  latent  ambiguity 
as  to  the  monument  intended  by  the  parties.  The  monu- 
ment, if  it  can  be  ascertained,  must  control.  But  when 
a  latent  ambiguity  exists  as  to  its  location,  courses  and 
distances,  and  the  estimated  quantity  of  the  land,  are  en- 
titled to  some  weight  in  determining  what  the  intention 
of  the  parties  was.'^  Where  a  grantor  executes  on  the 
same  day  two  deeds  of  contiguous  lots  of  land,  by  the 
course  and  distance  calls  of  which  the  lots  overlap  each 
other,  a  common  boundary  line  is  not  established.  The 
party  who  is  in  possession  to  the  extent  warranted  by 
the  calls  of  his  deed  cannot  be  ousted  by  the  calls  of  the 
other  deed.' 

§  1031a.  Suppljingr  omissions.  —  Omissions  may  be 
sometimes  supplied  so  as  to  cure  an  imperfect  description 
in  a  deed,  if  the  instrument  contains,  in  other  respects, 
sufficient  facts  to  enable  this  to  be  done.  For  instance, 
the  word  "of"  was  sup{)lied  in  a  description,  reading,  "  the 
north  half  of  the  southwest  quarter  the  southwest  quiirtcr" 
of  a  certain  section,  when  the  call  for  quantity  supjjortcd 
this  construction.*     Where  a  call  is  "east  with"  it  may  be 

»  Negbauer  v.  Smith,  44  N.  J.  L.  (i72.  And  see  Winans  r.  Clioney, 
55  Cal.  567.  For  a  case  in  which  a  motiunient  was  conBiilored  as  do- 
Bcriptive  only,  and  that  it  should  not  receive  undue  prominence,  see 
Jones  V.  ]iunker,  83  N.  C.  324.  See,  also,  Ix)rinK  r.  Nt.rton,  S  Mo. 
(SGreenL)  61;  Preston  v.  I'.owmar,  2  I'.ibl),  403;  Haiiiiilon  r.  K.mtor,  45 
Me.  32;  I',ra<lford  v.  Hill,  1  llayw.  (N.  C.)  22;  1  Am.  Dec.  640;  U'Hara 
V.  O'r.rien,  107  Cal.  309. 

■•'  Doe  V.  Vallejo,  29  Cal.  385. 

»  Keen  v.  Schnedlcr,  15  Mo.  App.  590. 

*  Burnett  v.  McClucy,  78  Mo.  676.  Said  the  court:  "The  jronrral 
rule  is,  that  effect  should  Ihj  given,  if  practicable,  to  every  part  of  the 
description.  The  words  'the  north  half  of  the  Houthwent  quarter  the 
southwest  quarter  of  section  6'  certainly  coiiHtilute  a  novel  dewription. 
It  would  seem  to  )^.  liiirlily  iin|)rolial)le  that  a  grantor  would.  un<!er  any 
circumstancea,  first  grunt  the  north  half  of  the  HoutljwcBt  quarter,  and 


§  1032  DESCRIPTION.  1450 

construed  to  mean  "esist parallel  with."  "When  the  deed,'* 
says  Mr.  Justice  Black,  "applied  to  the  subject  matter, 
shows  a  manifest  omission  in  the  description,  and  there 
is  sufficient  data  furnished  by  the  deed  to  supply  tlie 
omission,  the  omission  will  be  supplied  by  construction."^ 
Where  the  land  was  described  as  the  "northwest  quarter 
of  the  northwest  section  8,  T.  29  south,  of  range  16  east, 
containing  40  acres,"  the  words  "quarter  of"  next  preced- 
ing the  word  "section"  in  the  description  were  supplied 
by  construction  as  an  evident  omission.''  If  a  deed  omits 
one  of  the  calls  in  the  field  notes,  yet  if,  by  the  descrip- 
tion given,  and  by  reversing  the  calls  in  the  field  notes, 
the  missing  call  can  be  supplied  and  the  land  to  be  con- 
veyed ascertained,  the  deed  is  not  void  for  uncertainty.' 
Parol  evidence  may  be  received  for  the  purpose  of  aiding 
a  deed  of  this  character.*  Where  it  appeared  from  the 
whole  description  in  a  deed  that  a  certain  block  was  in- 
tended, a  call  for  the  ]>lock  by  an  erroneous  number  was 
held  to  be  properly  rejected.^ 

§  1032.  Subsequent  survey. — Where  the  description 
of  a  deed  gives  as  the  commencing  point  of  the  tract  con- 
veyed a  visible  monument,  which  is  clearly  ascertained, 

then,  by  words  immediately  following,  grant  the  entire  southwest  quar- 
ter :  Campbell  v.  Johnson,  44  Mo.  247.  If  the  description  were  an  abbre- 
viated one,  and  stood  thus:  'N.  1-2,  S.  W.  1-4,  S.  W.  1-4,  sec.  6,'  few 
persons  familiar  with  the  system  adopted  for  the  survey  and  subdivision 
of  lands  in  the  western  States,  and  the  abbreviations  in  use  for  the 
designation  of  such  subdivisions,  would  hesitate  to  construe  such  de- 
scription to  mean  the  north  half  of  the  southwest  quarter  of  the  south- 
west quarter  of  section  6.  But  when  such  abbreviated  descriptions  ara 
translated  into  words,  it  is  usual  to  insert  both  the  words  'of  and  'the' 
after  the  words  and  figures  designating  the  subdivisions." 
1  Deal  V.  Cooper,  94  Mo.  62. 

*  Campbell  v.  Carruth,  32  Fla.  264 ;  13  So.  Rep.  432.  In  Moss  v.  Shear, 
30  Cal.  467,  there  is  a  discussion  as  to  what  may  be  supplied  by  construc- 
tion. 

^  Montgomery  v.  Carlton,  56  Tex.  431. 

*  Montgomery  v.  Carlton,  56  Tex.  431;  Edwards  v.  Bowden,  99  N.  C. 
80;  6  Am.  St.  Eep.  487.     See,  also,  §  1015  a,  ante. 

*  Murray  v.  Hobson,  10  Colo.  66 ;  13  Pac.  Rep.  921.  In  this  case 
block  32  was  construed  to  mean  block  30. 


1451  DESCRIPTION.  ^  1032  a 

and  the  other  parts  of  the  description  are  certain  and 
definite,  every  requirement  of  the  law  as  to  suttieieney  of 
description  is  satisfied,  and  the  title  of  the  grantor  passes 
to  the  grantee  if  apt  words  of  conveyance  are  used.  If  a 
survey  is  subsequently  made  which  changes  the  location 
of  a  larger  tract,  within  which,  according  to  the  language 
of  the  deed,  the  land  conveyed  was  located,  or  if  the  sub- 
sequent survey  restricts  the  area  of  such  tract,  tiie  title  of 
the  grantee  is  not  divested  nor  his  rights  impaired.*  If 
the  starting  point  of  a  description  is  the  corner  of  a  sub- 
division according  to  the  survey  made  by  the  United 
States,  such  corner  becomes  a  monument  and  will  con- 
trol, notwithstanding  the  grantor,  at  the  time  of  sale,  by 
an  actual  survey  fixed  the  stake  at  another  point,  and  the 
lines  were  run  accordingly.^  Where  the  tract  of  land  con- 
veyed is  described  only  by  the  name  of  the  townsliip  or 
the  subdivision  of  the  township,  and  such  tract  is  a  sub- 
division according  to  the  United  States  survey,  the  deed 
is  considered  as  referring  to  the  line  of  the  survey  made 
by  the  United  States  and  the  monuments  then  erected.* 

§  10.'{2a.  Reliance  on  .survey. — Where  the  platter  of 
town  lots  has  set  stakes,  purchasers  may  locate  their  lines 
accordingly,  and  such  lines  cannot  be  unsettled  by  a  sub- 
sequent survey.  Notwithstanding  errors  in  locating  them, 
they  must  control,  and  the  question  is  not  whether  they 
were  correctly  placed,  but  whetlier  they  were  planted  by 
authority,  and,  relying  on  them,  persons  have  purchased 
lots  and  taken  possession.*  The  direct  testimony  of  wit- 
nesses wiio  saw  the  corners  located  by  the  original  survey, 
cannot  be  overcome  by  a  new  survey  showing  location  of 
quarter-section  corners.''     Wlien  the  linos  were  run  upon 

»  Widl.ur  V.  AVaHliburn,  47  Cal.  07. 

*  Powers  V.  Jackson,  60  Ciil.  429.  If  tlio  cnllH  in  tho  (Icpcriptinn  cor- 
respond witli  one  another,  they  cannot  ho  vari<'<l  hy  \<.\r<>\  »>vi<lriic««  to 
show  that  they  are  not  the  calls  in  tiie  siirvev  as  they  were  actually  made : 
Johnson  r.  Archibald,  78  Tex.  90;  22  Am.  St.  Uej..  27. 

*  P(iwerB  V.  Jackson,  50  Cal.  429. 

*  I>e  Compte  »;.  Liied.rH,  90  Mich.  49.');  .TO  Atn.  St.  Rep.  •«:>0. 

*  Milla  V.  rciiny,  74  Iowa,  172;  7  Auj.  bl.  iiv[>.  474, 


§§1033,1034  DESCRIPTION.  1452 

tlie  ground,  the  survey  as  it  was  actually  made  may  be 
always  shown.'  An  official  survey  will  overcome  a  private 
one.'^  For  the  purpose  of  relocating  lost  corners  by  lines 
run  by  an  official  surveyor,  a  private  survey  of  the  ground, 
well-known  marks  and  corners,  and  the  field  notes  and 
plat  may  be  considered,  although  the  private  survey  does 
not  harmonize  in  every  particular  with  the  official  survey.' 
A  relocation  of  an  original  monument  marking  a  corner 
that  has  been  lost  can  only  be  made  approximately  by 
measurements  from  other  corners.*  In  relocating  the 
boundaries  of  a  survey,  topographical  features  of  the  coun- 
try, and  of  a  road,  gulch,  and  houses  described  as  monu- 
ments, will  prevail  over  the  specified  courses  of  the 
boundary  lines.^  Where  the  land  is  described  as  a  legal 
subdivision  of  surveyed  land,  and  the  location  of  the  four 
corners  is  reasonably  certain,  but  the  quarter-section  cor- 
ners are  lost,  and  there  are  more  than  six  hundred  and 
forty  acres  within  the  section,  the  division  lines  of  the 
fractions  of  the  section  will  be  determined  by  a  division 
pro  rata  of  the  lines  of  the  section  as  they  appear  upon 
the  ground.^ 

§  1033.  Conflict  between  starting-  point  and  other 
calls. — When  a  conflict  arises  between  the  starting  point 
and  other  calls,  the  starting  point,  if  it  is  fixed,  certain, 
and  notorious,  will  generally  prevail.  But  if  the  other 
calls  may  as  readily  be  ascertained,  and  are  as  little  liable 
to  mistake,  they  are  entitled  to  as  much  consideration  as 
the  first.     If  they  all  agree,  they  control.' 


7 


§   1034.      Running-    to  line  of  another  tract. — Where 
the  line  of  another  tract  is  called  for  in  the  description 

»  Johnson  v.  Archibald,  78  Tex.  96;  22  Am.  St.  Rep.  27. 
«  Billingsley  v.  Bates,  30  Ala.  376;  68  Am.  Dec.  126. 

*  Billingsley  v.  Bates,  30  Ala.  376;  68  Am.  Dec.  126. 

*  Anderson  v.  Peterson,  74  Iowa,  482. 

*  Tognazzini   v.  Morganti,  84   Cal.  159. 

«  Eshleman  v.  Malter,  101  Oal.  233;  Miller  v.  Topeka  Land  Co.,  44 
Kan.  354. 

'  Walsh  V.  Hill,  38  Cal.  481. 


1453  DESCRIPTION.  §  1033 

in  a  deed  as  one  of  the  boundaries  of  tlie  land  conveyed, 
the  line  must  be  run  to  such  boundary  line  regardless  of 
distance.'  And  this  is  true  even  if  it  be  necessary  to  as- 
certain  such  line  itself  by  course  and  distance.-  Where, 
in  the  description,  the  land  is  bounded  on  one  side  by 
the  land  of  a  third  person,  the  true  boundary  line  between 
the  land  conveyed  and  the  land  of  such  third  person 
must  be  taken  as  the  boundary  line,  and  not  the  line  as 
it  was  understood  to  exist  at  the  time  of  the  execution  of 
the  deed,  if  there  is  a  variance  between  such  two  lines.' 
Where  one  of  the  boundaries  given  is  "  south  to  A  and 
B's  line,"  and  they  have  no  laud  in  common,  the  bound- 
ary line  must  be  run  after  reaching  A's  line  until  it  comes 
to  B's  line.*  A  subsequent  deed  is  not  admissible  in  evi- 
dence for  the  purpose  of  showing  the  boundaries  of  a 
tract  previously  conveyed.® 

§  1035.  "Northerly,"  "due  north,"  etc. — The  term 
"northerly,"  when  not  controlled  by  monuments  men- 
tioned in  the  description,  signifies  due  north."  The 
courses  north,  south,  east,  and  west  may,  when  controlled 
by  other  definite  and  certain  descriptions,  be  read  north- 
erly, southerly,  easterly,  and  westerly,  if  by  so  doing  all 
the  calls  will  be  made  consistent  and  harmonious.'  But 
the  terms  "northerly,"  "northwesterly,"   etc.,  are   only 

'  Cansler  r.  Fite,  5  Jones  (N.  C),  424;  Northriip  i-.  Suinnoy,  27  Barb. 
196;  Whittelsey  v.  Ki-IIok'i,',  28  .Mo.  404;   l\o\Um  v.  Lanii,  16  Tex.  U6. 
»  Cansler  v.  Fite,  5  Jones  (N.  O.),  424. 

•  Umbarger  v.  Chaboya,  49  Cal.  525;  Oornell  v.  Jackson,  9  Met.  150. 

*  Osborne  v.  Anderson,  89  N.  C.  261. 

*  Cutter  V.  Carutliers,  48  Oul.  178.  In  this  case,  a  tract  of  land  called 
the  "  McDoUKiil  tract,"  was  intended  by  Ibo  partirs  to  bavo  for  iUt 
Boutherr.  boundary  anotber  tract  calb-d  tlie  ".McKinMlry  tract."  A 
deed  conveying  tbo  "McKinstry  tract,"  executeil  ailvr  tbo  conveyance 
of  the  "  McDougal  tract,"  wan  beld  not  to  In;  adniiHsibie  in  evidi-nce  for 
the  purpose  of  sbowing  wbat  lands  tbe  grantees  of  tbe  "  .MclKjiigiii  tract" 
Buppose<J,  at  tbe  time  tbey  received  tbeir  conveyance,  were  beld  by  tbo 
owners  of  tbe  "  McKinstry  tract." 

•  Bos  worth  V.  Danzien,  2-'>  Cal.  290;  Brandt  r.  Ogden,  1  Johns.  IW-, 
Carrier  v.  Nelson,  96  Cal.  505;  .31  Am.  8t.  Kep.  2.<»;  litud  v.  Tacoaia 
Building  etc.  Assn.,  2  Wasb.  I9H;  26  Am.  8t.  iiep.  861. 

'  Faria  i;.  I'helan,  39  Cal.  612. 


§  1036  DESCRIPTION.  1454 

construed  as  "due  north,"  and  "due  northwest,"  when, 
if  this  construction  were  not  adopted,  the  deed  would  be 
void  for  want  of  certainty.  Calls  of  this  kind,  however, 
must  give  way  to  visible  monuments,  or  to  any  other  de- 
scription of  a  line  which  makes  its  location  reasonably 
certain.'  "  Easterly,"  used  alone,  in  its  strict  significance, 
and  unmodified  by  other  language,  will  be  construed  to 
mean  due  east.  If  its  meaning  is  qualified  by  the  use  of 
other  words,  it  means  precisely  what  the  words  of  quali- 
fication make  it  signify.^ 

§  1036.  Division  lines  by  consent. — A  boundary  line 
may  be  established  by  adjoining  landowners.  When  they 
so  agree  upon  a  boundary  line,  enter  into  possession,  and 
improve  the  lands  according  to  the  line  thus  accepted, 
they  will  not  afterward  be  allowed  to  claim  that  the  line 
agreed  upon  is  not  the  true  one,  although  the  bar  of  the 
statute  of  limitations  has  not  attached.^  But  the  proof 
should  be  clear,  and  slight  acts  from  which  the  inference 
of  an  agreement  might  be  drawn  should  not  be  consid- 
ered conclusive.*     A  deed  described  the  land  conveyed  as 

1  Irwin  V.  Towne,  42  Oal.  326.  This  section  was  cited  as  authority  in 
Martin  v.  Lloyd,  94  Gal.  195,  202,  where  the  court  said:  "Assuming  that 
'N.,'  as  here  used,  stands  for  '  north,'  and  not  for  some  other  word  ex- 
pressing generally  a  northern  direction,  still,  such  a  word  means  'due 
north '  only  when  that  construction  is  necessary  for  certainty,  or  when 
there  is  nothing  else  to  show  that  it  was  not  used  in  that  strict  sense." 

•'  Fratt  V.  Woodward,  32  Cal.  219;  91  Am.  Dec.  573. 

»  McNamara  v.  Seaton,  82  111.  498;  Orr  v.  Hadley,  36  N.  H.  575;  Cut- 
ler V.  Oallison,  72  111.  113;  Ebert  v.  Wood,  1  Binn.  216;  2  Am.  Dec.  436; 
Bolton  V.  Lann,  16  Tex.  96;  Houston  v.  Sneed,  lo  Tex.  307;  Columbet  v. 
Pacheco,  48  Cal.  395;  Eaton  v.  Rice,  8  N.  H.  378;  Sneed  v.  Osborn,  25 
Cal.  619 ;  Sawyer  v.  Fellows.  6  N.  H.  107 ;  25  Am.  Dec.  452 ;  Davis  v.  Judge, 
46  Vt.  655;  Foulke  v.  Stockdale,  40  Iowa,  99;  Fahey  v.  Marsh,  40  Mich. 
236;  Camp  v.  Cochrane,  71  Ga.  865;  Kile  v.  Tubbs,  23  Cal.  431 ;  Bauer  v. 
Gottmanhausen,  65  111.  499.  See  Crowell  v.  Maughs,  2  Gilm.  419;  43 
Am.  Dec.  62;  Yates  v.  Shaw,  24  111.  3^7;  Rockwell  v.  Adams,  7  Cowen, 
761;  Edwards  v.  White  Co.,  85  111.  390;  Wakefield  v.  Ross,  5  Mason,  15; 
Piercy  v.  Crandall,  34  Cal.  334;  Jackson  v.  Ogden,  7  Johns.  238;  Vos- 
burgh  V.  Teator,  32  N.  Y.  561;  Boyd's  Lessee  v.  Graves,  4  Wheat.  513; 
Jackson  v.  Freer,  17  Johns.  29. 

*  McNamara  v.  Seaton,  82  111.  498,  500,  per  Craig,  J.  In  Cutler  v. 
Callison,  72  111.  113,  115,  the  court  said:  "  This  principle  proceeds  upon 


1455  DESCRIPTION,  §  1036 

running  back  from  a  street  eighty-five  feet,  more  or  less, 
and  bounded  in  the  rear  by  the  grantor's  hmd,  which 
was  a  part  of  the  same  tract.  The  grantor,  after  the  exe- 
cution of  the  deed,  but  before  he  had  sold  any  more  of 
the  land,  prepared  and  placed  on  record  a  plan  of  the 
land  in  which  the  part  conveyed  was  laid  down  as  run- 
ning to  a  length  of  eighty-eight  feet  from  the  street.  It 
was  held  that  the  grantee  took  according  to  the  plan,  as 
the  acts  of  the  grantor  were  equivalent  to  the  fixing  of  a 
line  or  monument.^  A  boundary  line  was  described  as 
running"  northerly  to  land  of  M.,  thence  southeasterly  to 
M's  land,  thirty-eight  rods  and  one-half  to  a  stump  and 
stones."  Immediately  after  the  execution  of  the  deed, 
the  parties  went  upon  the  land,  the  monuments  at  the 
northwesterly  and  the  northeasterly  corners  were  pointed 
out,  and  the  distance  between  them  was  exactly  thirty- 
eight  rods  and  a  half.  But  there  was  a  small  strip  of 
land  between  this  line  and  the  land  of  M;  still  it  was 
held  that  the  monuments  agreed  upon  were  to  govern, 
and  that  this  strip  of  land  did  not  pass  by  the  deed.^ 
And  it  may  be  observed  that  where  the  deed  refers  for  its 
boundaries  to  monuments  which  at  the  time  are  not  actu- 
ally in  existence,  but  are  afterward  erected  by  the  par- 
ties, they  will  be  bound  by  such  monuments  in  the  same 
manner  as  if  they  had  been  erected  before  the  execution 

the  ground,  not  that  title  can  pass  by  parol  agreement,  but  that  the  ex- 
tent of  the  owniTsiiii)  of  tlie  land  of  each  lias  been  agreeil  upon,  settled, 
and  finally  detennint'd :  Cruwell  v.  Maughw,  2  (iiliu.  419;  4;{  Atn.  Doc. 
52;  Kip  V.  Norton,  12  Wend.  127;  27  Am.  Dec.  120;  McC'ormirk  v.  Har- 
num,  10  Wend.  109;  VoHburKh  v.  Tualor,  32  N.  Y.  fML  The  courts 
always  lofjk  with  favnr  upon  the  adjuKtment  of  controverted  niatti-rs  of 
this  character  by  aj^reement  of  the  partiiB  in  intf-n'st,  and  when  an 
agreement  to  estaljlish  a  boundary  line  is  fairly  aixl  clearly  made,  and 
possession  of  the  land  held  according  to  the  line  so  agrei'<l  upon,  no  rea- 
Bon  is  perceived  why  such  agreements  should  not  be  <onclusive."  An 
agent  notauthorizeil  to  agree  up<jn  a  division  line,  but  employed  merely 
as  a  superintendent,  cannot  bind  the  owner  by  staking  a  litie  to  show 
how  far  tenants  of  the  land  should  plow:  U'liara  v.  O'Brien,  107  Cal. 
309. 

1  Blaney  v.  Rice,  20  I'ick.  <12;  :V2  Am.  Dec.  204. 

»  I'roHt  V.  fcipaulditig,  19  I'lck.  445;  31  Am.  Dec.  ir>0. 


§  1037  DESCRIPTION.  1456 

of  tlie  deed.^  An  agreement  between  grantor  and  grantee 
as  to  a  boundary  line,  must,  in  order  to  be  effectual,  be 
made  while  they  own  the  lands  on  both  sides  of  the  line 
which  they  thus  locate.'^  If  a  division  fence  is  acquiesced 
in  by  the  parties  for  the  period  of  sixteen  years,  they  are 
estopped  from  asserting  the  incorrectness  of  the  location.^ 
And  although  the  deeds  of  both  parties  call  for  a  straight 
line  between  admitted  landmarks,  and  a  division  fence  is 
crooked,  yet  if  it  has  stood  for  twenty-one  years,  it  will 
constitute  the  line  between  the  adjoining  owners.*  When 
the  description  is  so  uncertain  that  a  line  may  run  in  two 
different  ways,  and  still  not  be  inharmonious  with  the 
other  calls  of  the  deed,  either  line  may  be  adopted  by  the 
parties.  Both  parties  are  concluded  by  the  line  when  it 
is  so  established.® 

§  1037.  Iiine  located  by  mistake. — But  where  adjoin- 
ing proprietors  have  made  a  mistake  in  the  location  of  a 
division  line,  it  will  not  be  held  binding  and  conclusive 
upon  them  if,  by  disregarding  it,  no  injustice  will  be 
done.^  Where  the  boundaries  are  indefinite  and  uncer- 
tain, and  they  are  run  out  and  marked  by  the  owner  of 

'  Lerned  v.  Morrill,  2  N.  H.  197 ;  Blaney  v.  Kice,  20  Pick.  62;  32  Am. 
Dec.  204;  Kennebec  Purchase  v.  Tiffany,  1  Me.  (1  Greenl.)  219;  10  Am. 
Dec.  60 ;  Waterman  v.  Johnson,  13  Pick.  267.  See  Davis  v.  Rainsford, 
17  Mass.  212. 

^  Sneed  v.  Osborn,  25  Cal.  619. 

*  Oolumbet  v.  Pacheco,  48  Cal.  395. 

*  Curry  v.  Raymond,  28  Pa.  St.  149. 

*  Hastings  v.  Stark,  36  Cal.  122.  Adjoining  landowners  may  become 
tenants  in  common  in  trees  on  a  boundary  line,  and  either  may  be  en- 
joined from  destroying  them :  Musch  v.  Burkhart,  83  Iowa,  301 ;  32  Am. 
St.  Rep.  305.  A  tree,  the  trunk  of  which  is  on  the  boundary  line  be- 
tween adjoining  owners,  is  held  in  common:  Dubois  v.  Beaver,  25 
N.  Y.  123;  82  Am.  Dec.  326.  But  otherwise  if  exclusively  on  the  land 
of  one,  though  the  roots  and  branches  may  reach  beyond  the  boundary : 
Hoffman  v.  Armstrong,  48  N.  Y.  201 ;  8  Am.  Rep.  537 ;  Skinner  v.  Wilder, 
38  Vt.  115 ;  88  Am.  Dec.  645.  A  nuisance  is  not  caused  by  a  row  of  trees 
planted  near  a  boundary  line.  Merely  the  land  of  an  adjoining  owner 
is  thereby  rendered  unfit  for  a  purpose  for  which  he  has  made  no  at- 
tempt to  use  it:  Grandona  v.  Lovdal,  78  Cal.  611;  12  Am.  St.  Rep.  121. 

«  Menkens  v.  Blumenthal,  27  Mo.  198. 


1457  DESCRIPTION.  §  1037  a 

the  land,  the  presumption  as  against  him  is  that  this  was 
correctly  done;  but  he  may  overcome  this  presumption 
by  proof  of  a  mistake,  and  by  showing  that  there  is  a 
material  variance  between  the  true  lines  and  the  lines  as 
marked.^  Where  neither  party  intends  to  claim  beyond 
the  true  line,  possession,  up  to  what  is  erroneously  sup- 
posed to  be  the  true  dividing  line  between  adjoining  pro- 
prietors, will  not  work  a  disseisin  in  favor  of  either  of  any 
land  occupied  by  him  under  such  erroneous  belief.'  But, 
although  a  location  of  a  boundary  line  may  have  been 
originally  made  under  an  agreement  resulting  from  a 
mutual  mistake  of  fact,  still,  an  acquiescence  for  forty 
years  in  such  practical  location  is  conclusive.* 

§  1037  a.  Further  consideration  of  subject. — It  must 
be  admitted  that  the  decisions  are  not  uniform  on  this 
subject,  but  we  believe  the  weight  of  authority  sustains 
the  proposition  we  have  stated.  Whether  the  establish- 
ment of  a  boundary  line  depends  upon  the  theory  of  an 
agreement  by  the  parties  to  locate  a  dividing  line,  or  on 
the  theory  that  the  continuous  possession  of  a  strip  of 
land  not  included  in  the  description  of  the  deed  consti- 
tutes adverse  possession,  yet  the  element  of  intent  with 
which  possession  is  taken  and  held  must  bo  material.  If 
such  possession  is  the  result  of  mistake,  without  an  in- 
tent on  the  part  of  tlie  person  in  possession  to  oncroat-h 
upon  his  neighbor,  and  liold  more  land  than  that  to  which 
he  is  entitled,  such  possession  cannot  be  said  to  be  ad- 
verse, until  it  is  known  wliere  the  true  boundary  lino 
lies.  Then  the  op[)ortunity  is  presented  for  him  to  de- 
cide whether  lie  will  claim  adversely,  land  which  is  not 
embraced  within  the   description  contained    in  his  deed. 

*  Cunningham  v.  Roberson's  leasee,  31  Tenn.  (1  Swan)  1.%.  And  bgo 
Gray  v.  Couvillon,  12  La.  Ann.  7'iO.  where  it  is  helil  timt  juirlioH  arc  not 
bound  by  a  consent  to  boundaries  wliicli  iiavo  been  made  under  an  ap- 
parent error,  unleaa,  perlia|)H,  by  a  prescription  of  thirty  years.  And 
Bee  Lemmon  v.  llartaook,  80  Mo.  13. 

»  Ilrmx  V.  liatteen,  68  .Mo,  84. 

»  Baldwin  v.  Brown,  16  H.  Y,  359.    And  see,  also,  Major's  ileira  v. 
Rice,  57  Mo.  384.     ' 
1;ekd8,  Vou  11.  — n 


§  1037  a  DESCRIPTION.  1458 

The  current  of  authority,  in  our  opinion,  justifies  us  in 
stating  the  rule  to  be  that  the  location  of  a  boundary  line, 
made  through  mistake  or  ignorance  of  the  true  line,  with 
no  intention  to  claim  beyond  the  true  line,  wherever  it 
may  be,  will  not  bind  the  parties,  so  as  to  prevent  them 
from  showing  the  truth,  and  having  the  lines  established 
as  they  were  originally  intended  and,  in  justice,  ought  to 
be/  While  this  is  undoubtedly  the  general  rule,  yet  in 
many  jurisdictions  the  principle  prevails,  that  the  ques- 
tion whether  a  line  was  located  by  mistake  or  not  is  im- 
material, and  that  the  possession  beyond  the  true  line, 
under  a  mistake  as  to  its  location,  must  be  considered  as 
adverse,  and,  if  continued  for  the  length  of  time  prescribed 
by  the  statute  of  limitations,  will  extinguish  the  title  of 
the  owner.^     In  California,  it  is  held  that  the  possession 

1  Battner  v.  Baker,  108  Mo.  311;  32  Am.  St.  Eep.  606;  Krider  v.  Mil- 
ner,  99  Mo.  145;  17  Am.  St.  Rep.  549;  Jacobs  v.  Moseley,  91  Mo.  4''>7; 
Scbad  V.  Sharp,  95  Mo.  574;  Skinker  v.  Haagsma,  99  Mo.  209;  Kunze  v. 
Evans,  107  Mo.  487;  28  Am.  St.  Rep.  435;  Finch  v.  Ullman,  105  Mo. 
255;  24  Am.  St.  Rep.  383;  Crawford  v.  Ahrnes,  103  Mo.  88;  Houx  v. 
Batteen,  68  Mo.  84;  Tamm  v.  Kellogg,  49  Mo.  118;  St.  Louis  Univeraity 
V.  McKune,  28  Mo.  481;  Keen  v.  Schnedler,  92  Mo.  516;  Knowlton  v. 
Smith,  36  Mo.  507;  88  Am.  Dec.  152;  McDonald  v.  Fox,  20  Nev.  364; 
Wood  V.  Willard,  37  Vt.  377 ;  86  Am.  Dec.  716 ;  Brown  v.  Gray,  3  Greenl. 
126;  Worcester  v.  Lord,  56  Me.  265;  96  Am.  Dec.  546;  Dow  v.  McKen" 
ney,  64  Me.  138;  Brown  v.  Cockerell,  33  Ala.  38;  Sartain  v.  Hamilton, 
12  Tex.  219;  62  Am.  Dec.  524;  Grube  v.  Wells,  34  Iowa,  148;  Burnell  v. 
Russell,  39  Vt.  579;  94  Am.  Dec.  358;  Mills  v.  Penny,  74  Iowa,  172;  7 
Am.  St.  Rep.  474;  Gates  v.  Butler,  3  Humph.  447;  Skinner  v.  Crawford, 
54  Iowa,  119;  Burnell  v.  Russell,  39  Vt.  579;  94  Am.  Dec.  358;  Howard 
V.  Reedy,  29  Ga.  152;  74  Am.  Dec.  58;  Gilcrist  v.  McLaughlin,  7  Ired. 
310;  Sheils  v.  Haley,  61  Cal.  157;  Breen  v.  Donnelly,  74  Cal.  304.  This 
rule  also  applies  to  the  public:  State  v.  Welpton,  34  Iowa,  144. 

*  Ramsey  v.  Glenny,  45  Minn.  401;  22  Am.  St.  Rep.  736;  Canfield  v. 
Clark,  17  Or.  473 ;  11  Am.  St.  Rep.  845 ;  Tex  v.  Pflug,  24  Neb.  666 ;  8 
Am.  St.  Rep.  231;  French  i;.  Pearce,  8  Conn.  439;  21  Am.  Dec.  680; 
Smith  V.  McKay,  30  Ohio  St.  418;  Metcalfe  v.  McCutcheon,  60  Miss.  145; 
Mode  V.  Long,  64  N.  C.  433;  Seymour  v.  Carli,  31  Minn.  81;  Yetzer  v. 
Thompson,  17  Ohio  St.  130;  91  Am.  Dec.  122;  Swettenham  v.  Leary,  18 
Hun,  287;  Levy  v.  Yerga,  25  Neb.  764;  13  Am.  St.  Rep.  525;  Erck  v. 
Church,  87  Tex.  575;  Harn  v.  Smith,  79  Tex.  310;  23  Am.  St.  Rep.  340; 
Coleman  v.  Smith,  55  Tex.  259;  Atwood  v.  Canrike,  86  Mich.  99;  Hoff- 
man V.  White,  90  Ala.  354.  In  some  States,  where  the  rule  prevails  as 
announced  in  the  text,  the  decisions  are  conflicting.    Compare  with  the 


1459  DESCRIPTION.  §  1038 

of  land,  under  a  mistake  as  to  the  boundary  line,  will  not 
defeat  any  claim  to  title  founded  on  such  possession,  and 
it  is  said  that  the  doctrine  that  such  possession  should  be 
accompanied  by  a  claim  of  title,  is  founded  upon  a  fal- 
lacy.^ The  law  in  that  State  may  be  said  to  be  that  title 
to  land  may  be  acquired  by  the  adverse  possession  of  land 
for  the  statutory  period  within  the  limits  of  an  inclosure, 
notwithstanding  the  land  was  so  inclosed  under  a  mistake 
as  to  its  boundaries,  where  it  is  claimed  that  the  fences 
were  constructed,  as  a  matter  of  fact,  on  the  true  line;  but, 
if  no  claim  was  made  that  the  fences  were  on  the  true 
line,  but  they  were  erected  with  the  expectation  of  moving 
them  to  the  true  line  when  it  should  be  ascertained,  the 
possession  is  not  adverse.' 

§  1038.  Two  descriptions  in  deed. — Where  the  deed 
contains  two  descriptions  of  the  land  conveyed  equally 
explicit,  but  between  which  there  is  a  repugnance,  that  de- 
scription which  the  whole  instrument  shows  best  expresses 
the  intention  of  tlie  parties  must  control.'  The  court  will 
look  into  the  surrounding  facts,  and  will  adopt  the  de- 
scription which  is  most  definite  and  certain,  and  which, 

decisions  cited  in  the  prior  note:  Cole  v.  Parker,  70  Mo.  372;  Handlan 
V.  McManus,  100  Mo.  125;  18  Am.  St.  Rep,  533;  Grimm  v.  Curley,  43 
Cal.  250.  The  Supreme  Court  of  Missouri,  in  a  recent  case,  attempts  to 
reconcile  the  conflicting  decisions  in  that  State  by  declaring  that  when 
adjoining  landowners  claim  only  to  the  true  line,  wherever  that  may  bo, 
they  are  not  Ixjund  by  the  8Upi)08ed  line,  but  must  conform  to  the  true 
line  when  it  is  asccrtainecl,  but  where  a  person  has  pos'^ession  up  to  a 
fence,  and  claims  to  be  the  owner  up  to  it  this  jioi^scssion  is  a<l verse,  al- 
though he  may  believe  the  fence  to  be  on  the  true  line.  "The  distinc- 
tion between  these  rules,"  said  the  court,  "lies  in  the  fact  whether  the 
party  claimed  only  to  the  true  line,  wherever  that  might  l)e,  or  to  tiio 
fence":  Battner  v.  Baker,  108  Mo.  311 ;  32  .\m.  St.  Hep.  <K)0. 

»  Woodward  v.  Faris,  109  Cal.  17;  Silvarer  v.  Hansen,  74  Cal.  584; 
Grimm  v.  Curley,  43  Cal.  250. 

'  Woodward  v.  Faris,  109  Cal.  17.  But  see,  also,  declHions  cited  in 
previous  notes,  and  compare  O'Hara  r.  O'Brien,  107  Cal.  30!». 

»  Moore  v.  Massini,  37  Cal.  4.32;  DhmcoII  v.  Green.  59  N.  H.  101  ;  Wa<lo 
«.  Deray,  50  Cal.  376;  liaymond  v.  Coffey,  6  Or.  132.  See  Den  v.  Gra- 
ham, 1  Dev.  &  B.  76;  27  Am.  Dec.  226;  Reamer  v.  Nesmith.  .34  Cal.  624; 
Benedict  v.  Gaylord,  11  Conn.  332;  29  Am.  Dec.  299;  Wendell  v.  Jackson^ 


§  1038  DESCRIPTION.  1460 

ill  the  light  of  surrounding  circumstances,  can  be  said  to 
effectuate  most  clearly  the  intention  of  the  parties.*  A 
description  in  a  deed  was:  "All  that  certain  lot  of  land 
situate  in  said  city  of  Concord,  on  the  north  side  of  Chapel 
street,  fifty  feet;  westerly  by  land  of  said  Vail  and  late 
Samuel  Frye,  fifty  feet;  and  easterly  by  land  of  said  Vail, 
about  ninety-eight  feet,  with  the  buildings  thereon,  in- 
tending to  include  only  the  land  on  which  said  buildings 
are  situated,  and  the  yard  inclosed  within  the  fence  as 
now  built."  The  question  before  the  court  was  whether 
the  particular  description  of  the  property  conveyed  was 
controlled  and  limited  by  the  words  "intending to  include 
only  the  land  on  which  said  buildings  are  situated,  and 
the  yard  inclosed  within  the  fence  as  now  built."  The 
court  held  that,  from  the  facts  of  the  case,  the  second 
description  being  clearly  erroneous,  should  not  control.^ 

8  Wend.  183;  22  Am.  Dec.  635;  Moss  v.  Shear,  30  Cal.  467.  For  a  case 
in  which  it  was  held  that  there  was  no  repugnance  in  the  descriptive 
clause  of  the  deed,  see  Castro  v.  Tennent,  44  Cal.  253.  See,  also,  Vose  v. 
Handy,  2  Greene,  322;  11  Am.  Dec.  101. 

1  Wade  V.  Deray,  50  Cal.  376.  Where  land  is  described  by  metes  and 
bounds,  and  the  deed  also  states  that  it  is  all  of  a  tract  of  land,  described 
in  another  mode,  effect  will  be  given,  if  the  two  descriptions  do  not  agree, 
to  the  larger  and  naore  comprehensive  description.  As  a  consequence, 
the  deed  will  convey  the  land  embraced  in  both  descriptions :  Lake  Erie 
etc.  E.  R.  Co.  V.  Whitham,  155  111.  514;  46  Am.  St.  Rep.  355. 

*  Driscoll  V.  Green,  59  N.  H.  101.  In  this  case,  Mr.  Justice  Clark,  in 
delivering  the  opinion  of  the  court,  said:  "A  deed  is  to  be  construed 
according  to  the  intention  of  the  parties  as  manifested  by  the  entire 
instrument,  although  such  construction  may  not  comport  with  the  lan- 
guage of  a  particular  part  of  it :  Allen  v.  Hoi  ton,  20  Pick.  458,  463 ;  Wortli- 
ington  V.  Hylyer,  4  Mass.  196;  White  v.  Gay,  9  N.  H.  126;  31  Am.  Dec. 
224;  Johnson  v.  Simpson,  36  N.  H.  91 ;  Lane  v.  Thompson,  43  N.  H.  320, 
324;  Richardson  v.  Palmer,  38  N.  H.  212.  Regarding  the  two  descrip- 
tions as  equally  explicit  and  unambiguous,  being  inconsistent  with  each 
other,  that  description  must  control  which  best  expresses  the  intention 
of  the  parties  as  manifested  by  the  whole  instrument.  By  the  first  de- 
scription, the  premises  convej'^ed  are  bounded  southerly  by  Chapel  street. 
By  the  second  description,  limiting  the  premises  to  the  land  on  which 
the  buildings  are  situated  and  the  yard  inclosed  within  the  fence,  the 
plaintiff's  lot,  instead  of  extending  to  Chapel  street,  is  separated  from  it 
by  a  strip  of  land  six  feet  and  three  inches  in  width,  lying  between  the 
fence  on  the  southerly  side  of  the  yard  and  the  northerly  line  of  Chapel 
street.    This  description  excludes  the  plaintiff's  lot  and  buildings  en- 


1461  DESCRIPTION.  §  1038 

"  There  is  but  one  principle  applicable  to  questions  of 
this  sort.  If  there  be  but  one  description  in  the  deed, 
that  is  to  be  strictly  adhered  to.  If  there  be  more  than 
one,  and  they  turn  out  upon  evidence  not  to  agree,  that 
is  to  be  adopted  which  is  most  certain.  Course  and  dis- 
tance from  a  given  point  is  a  certain  description  in  itself, 
and  therefore  is  never  departed  from,  unless  there  be 
something  else  which  proves  that  the  course  and  distance 
stated  in  the  deed  were  thus  stated  by  mistake.  It  has 
been  held  that  a  tree  called  for  and  found  not  correspond- 
ing to  the  course  and  distance  establishes  the  mistake, 
and  is  itself  the  terminus.  So,  of  the  line  of  another 
tract  of  land.  But  if  the  tree  be  not  found,  nor  its  for- 
mer situation  identified,  it  is  the  same  as  if  the  call  for 
it  had  been  omitted;  for  there  is  then  no  guide  but  the 
course  and  distance."*  "The  true  rule  of  construction, 
where  the  parts  of  a  description  in  a  deed  are  inconsistent 
with  each  other,  is  to  give  effect  to  those  consistent  and  in- 
telligible portions  which  carry  out  the  intention  of  the 
parties,  and  reject  v.-hat  is  repugnant  thereto.  If  the  in- 
strument defines  with  convenient  certainty  what  is  in- 
tended to  pass  by  it,  a  subsequent  erroneous  addition  will 
not  vititite  it.""     In  a  deetl,  the  land  conveyed  was  de- 

tirely  from  the  street,  without  even  a  right  of  passage  way  to  it.  Such 
could  not  have  Vwen  the  intention  of  the  jjarties,  and  this  description  is 
manifestly  erroneous  as  to  the  pontherly  lino  of  the  lot.  It  is  etjually 
incorrect  when  nppli<-<l  to  the  northerly  line,  as  it  leaves  a  strip  of  hind 
between  tlie  northerly  end  of  the  stahle  an<l  tlie  Krye  land,  wliicli  is  in- 
cluded in  the  firnl  <leHcription,  and  which  the  grantor  evitlentiy  intendeil 
to  convey.  The  second  fleHcriplioii,  therefore,  heing  clearly  erroneous 
as  to  the  northerly  an<l  southerly  lines  of  the  lot,  ougiit  not  to  control 
the  firHt  rleHcriplion  as  to  the  eaHterly  line.  If  there  is  an  explicit  and 
unamhiguoUH  grant  at  a  thing,  any  exception  or  reservation  which  is 
manifestly  contradictory  will  Imj  rejected:  Kutherford  t'.  Tracy,  JH  Mo. 
325;  8  Am.  Kep,  104;  Ilerrick  v.  HojdtinH,  23  Me.  217;  Tike  v.  Munroe, 
36  Me.  309;  58  Am.  Dec.  751 ;  Ela  v.  Canl,  2  N.  11.  175;  »  Am.  Dec.  4(i." 

«  Kiidln,  C.  J.,  in  Den  v.  Graliam,  1  Dev.  Jk.  II.  76;  27  Am.  Dec.  226. 

*  Kaymond  v.  Coffey,' 6  Or.  132,  1.35,  jwr  Mother,  .1.  In  this  case  the 
description  was  given  hy  metes  an<l  IxjiindH,  U)  which  was  added  the 
words,  "  hcing  partH  of  sections  twenty-five  nntl  thirty-six,  in  township 
four  south,  range  three  west";  it  wa«  claimed  that  these  words  consti- 
tuted the  particular  description  which  should  guvuru,  aud  that  the  he- 


§  1038  DESCRIPTION.  1462 

scribed  by  fixed,  linown,  and  visible  metes  and  bounds, 
as  well  as  by  corresponding  courses  and  distances.  A 
further  description  was  also  added,  which  bounded  the 
land  on  its  several  sides  by  the  lands  of  adjoining  owners. 
Land  included  within  the  latter  description  was  excluded 
by  the  former.  An  action  of  ejectment  was  brought 
against  the  grantee  for  the  land  not  included  in  the  former 
description,  and  the  court  decided  that  the  apparent  in- 
tention of  the  parties  was  not  to  convey  different  parcels 
of  land  by  different  descriptions,  but  to  convey  one  piece, 
and  that  the  first  description  in  the  deed,  being  more  cer- 
tain than  the  second,  controlled  the  latter.^  A  descrip- 
tion after  naming  a  certain  monument  added,  "thence 
running  southerly  by  land  improved  by  Gridley  Putney 
to  the  road."  A  line  running  a  little  east  of  south  would 
include  the  land  improved  by  Putney  in  the  granted 
premises.  But  a  line  running  a  little  south  of  west,  to 
the  corner  of  the  land  improved  by  Putney,  and  thence 
along  the  line  of  this  land  a  little  east  of  south  to  the 
road,  at  a  point  almost  south  of  the  monument,  would  ex- 
clude such  land  from  the  granted  premises.  The  court 
decided  that  it  would  adopt  the  latter  construction  as  the 
true  one.*  Where  a  deed  conveyed  a  tract  of  land  de- 
scribed as  "sixty  acres  of  the  west  side  of  lot  6  of  section 
10,  and  lot  1,  and  S.  W.  i  of  S.  W.  i  of  section  11,"  and 
the  three  subdivisions  thus  mentioned  constituted  one 
body  of  land,  lot  6  adjoining  on  the  west  each  of  the  other 
subdivisions,  the  court  held  that  by  this  conveyance,  sixty 
acres  off  the  west  side  of  this  body  of  land  formed  of  these 
three  subdivisions  were  conveyed,  and  that  the  deed  did 
not  convey  both  such  sixty  acres,  and  also  the  two  east- 
erly subdivisions.'     If  the    statement  of  the  courses  or 

ginning  stake  could  not  be  located  outside  of  these  sections.  But  the 
court  held  that  these  words  should  be  treated  as  words  of  general  de- 
scription, and  if  inconsistent  with  the  description  by  metes  and  bounds, 
should  be  rejected. 

'  Benedict  v.  Gaylord,  11  Conn.  332;  29  Am.  Dec.  299. 

»  Bond  V.  Fay,  8  Allen,  212 ;  s.  c.  12  Allen,  86. 

•  Lovejoy  v.  Gaskill,  30  Minn.  137. 


1463  DESCRIPTION.  §§  1038  a,  1039 

boundaries  is  manifestly  erroneous,  the  deed  is  not  de- 
feated  wlien  there  remains  a  description  sufficiently  cer- 
tain to  locate  the  land.^ 

§   1038  a.     3Iiadle  point  of  physical   object  intended. 

Wiiere  any  physical  object  or  monument  is  designated  as 
a  boundary,  the  middle  or  central  point  of  such  boundary 
is  implied  in  the  absence  of  any  qualifying  term.-  The 
courses  and  distances  must  yield  to  the  actual  line  of  a 
creek  whicii  is  made  the  boundary  of  the  land  conveyed, 
the  calls  of  the  deed  ascending  the  creek,  and  the  line 
ascending  the  creek  following  the  thread  of  the  stream.^ 
Where  land  is  described  as  a  subdivision  according  to  a 
map  of  the  block  on  file,  and  also  by  metes  and  bounds, 
the  former  description  will  prevail  if  there  be  a  conflict.'* 

§  1039.  Repugrnance  between  general  and  particular 
description. — Where  there  is  a  repugnance  between  a 
general  and  a  particular  description  in  a  deed,  the  latter 
will  control."  But  whenever  possible,  the  real  intent  is  to 
be  gathered   from  the  whole   description,   including  the 

»  Thompson  r.  Ela.  60  N.  H.  562. 

»  Freeman  v.  BellcKarde,  108  Cal.  179;  49  Am.  St.  Rep,  76. 

»  Freeman  v.  Belle>;anle,  lOS  Cal.  179;  49  Am.  St.  Kej).  76. 

♦  Masterson  v.  -Munro,  105  Cal.  431 ;  45  Am.  St.  Kep.  57. 

*  Sikes  V.  Shows,  74  Ala.  382;  Haiinihal  &  St.  Joseph  K.  R.  Co.  ». 
Green,  68  Mo.  169;  Woodman  v.  Lane,  7  N.  II.  212;  Gano  v.  AMridjje, 
27  Ind.  294;  IJratton  v.  ClawHon,  3  Strob.  127;  Thorndike  v.  Uiclianln, 
13  Me.  430;  liell  v.  Sawyer,  32  N.  H.  72;  McEowen  v.  Lewis,  26  N.  J.  L. 
(2  Dutch.)  451.  8eo  Nutting  v.  Ilerljert,  3.5  N.  H.  121  ;  Harney  v.  .Miller, 
18  Iowa,  460;  Smith  v.  Strong,  14  Pick.  128;  Brunswick  Savings  Inst.  v. 
Crossman,  76  Me.  577;  Lovejoy  t-.  Lovett,  124  Mans.  270;  Feiuvick  v. 
Gill.  38  .Mo.  510;  Evans  t>.  Greene,  21  Mo.  170;  Barnard  v.  Martin,  5 
N.  H.  536;  Flagg  f.  Bean,  25  N.  H.  (5  Fost.)  49;  Carter  r.  White,  101 
N.  C.  30;  7  8.  E.  Rep.  473;  Grandy  p.  Casey,  93  Mo.  505;  Wharion  v. 
Brick,  49  N.  J.  L.  289 ;  8  At).  Rep.  529 ;  (iiulmartin  r.  Wocl,  76  Ala.  204  • 
Sikes  V.  Shows,  74  Ala.  .'{82;  Ihma  r.  Middlestrx  Bank,  10  Met.  250; 
Whiting  V.  Dewey,  15  Pick.  42S;  Wriglit  v.  Mahry,  9  Vcrg.  55;  Fl(t<ii,.r 
r.  Clark,  48  Vt.  211  ;  Spillor  r.  .S:ri liner,  36  Vt.  215;  CummingH  v.  Black, 
65  Vt.  76;  2-'»  Atl.  Rep.  5tO<l;  Raymon<l  v.  Coffey,  6  Or.  i:i2;  Jones  ». 
Fashby,  62  .Mich.  614;  29  N.  W.  Rep.  374;  Benedict  f.  (JayU.rd,  11  Conn! 
3.82;  29  Am.  Dec.  299;  Harney  v.  Mdler,  18  Iowa,  460;  Waldin  t;.  Smith, 
76  Iowa,  6-32;  89  X,  W.  Rep.  82;  SUEford  v.  King,  W  Tex.  257;  94  Am! 


§  1039  DESCRIPTION.  1464 

general  description  as  well  as  the  particular.^  In  attempt- 
ing to  determine  the  intention  of  the  parties  from  the 
whole  instrument,  we  cannot  say  that  a  particular  descrip- 
tion in  a  deed  is  necessarily  enlarged  by  a  following  gen- 
eral description,  referring  to  and  adopting  the  description 
of  an  earlier  deed,  even  if  the  language  employed  by  the 
grantor  is  "intending  to  convey  the  same  and  identical 
real  estate  conveyed  to  me  by  one,"  giving  the  name  of 
such  grantor,  the  date  of  the  deed,  and  the  book  and  page 
where  recorded.^  But  where  the  description  in  the  deed 
closes  with  a  clause  which  clearly  and  unequivocally  sums 
up  the  intention  of  the  parties  as  to  the  particular  prop- 
erty conveyed,  such  clause  has  a  controlling  effect  upon 
all  the  antecedent  phrases  in  the  description.  As  for  in- 
stance, such  is  the  effect  of  a  closing  clause  stating  that 
"the  premises  hereby  intended  to  be  conveyed  being 
the  east  half  part  of  the  farm  whereon  Johnson  Bab- 
cock,  now  deceased,  formerly  lived,  in  the  town  of  Tully."  ' 
Still  each  case  must  in  a  measure  be  decided  by  itself.    A 

Dec.  304;  Cullers  v.  Piatt,  81  Tex.  258;  16  S.  W.  Rep.  1003;  Moore  v. 
Griffin,  22  Me.  350;  Thorndike  v.  Richards,  13  Me.  430;  Howard  v.  Saule, 
5  Mason,  410;  Witt  v.  St.  Paul  etc.  Ry.  Co.,  38  Minn.  122;  35  N.  W.  Rep. 
862;  Case  v.  Dexter,  106  N.  Y.  548;  Jones  v.  Smith,  73  N.  Y.  205. 

*  Brunswick  Savings  Inst.  v.  Crossman,  76  Me.  577, 

*  Brunswick  Savings  Inst.  v.  Crossman,  76  Me.  577. 

'  Ousby  V.  Jones,  73  N.  Y.  621.  See,  also,  Jones  v.  Pashby,  62  Mich. 
614;  Bates  v.  Foster,  59  Me.  157;  8  Am.  Rep.  406;  Plummer  v.  Gould,  92 
Mich.  1;  31  Am.  St.  Rep.  567;  52  N.  W.  Rep.  146;  Ryan  v.  Wilson,  9 
Mich.  262;  Barney  v.  Miller,  18  Iowa,  460;  Witt  v.  St.  Paul  etc.  Ry.  Co., 
38  Minn.  122 ;  35  N.  W.  Rep.  862 ;  Bent  v.  Rogers,  137  Mass.  192 ;  Padduck 
V.  Pardee,  1  Mich.  421 ;  Sprague  v.  Snow,  4  Pick.  54 ;  Moran  v.  Lezotte, 
54  Mich.  83;  Chapman  v.  Crooks,  41  Mich.  595.  So  where  the  deed  re- 
cited, "The  purpose  and  intent  of  this  deed  being  to  convey  to  the  said 
second  parties  all  and  each  of  the  right,  title,  claim,  and  interest,  either  in 
possession  or  expectancy,  of  the  said  first  parties,  of,  in,  and  to  the  above- 
described  premises,  by  virtue  of  certain  deeds  of  conveyance,"  describ- 
ing them,  this  general  clause  controls  all  the  prior  phrases  of  the  descrip- 
tion: Plummer  v.  Gould,  92  Mich.  1;  31  Am.  St.  Rep.  567.  See  to  same 
effect,  Padduck  ?;.  Pardee,  1  Mich.  421;  Ryan  v.  Wilson,  9  Mich.  262; 
Chapman  v.  Crooks,  41  Mich.  595;  Moran  v.  Lezotte,  54  Mich.  83;  Jonea 
V.  Pashby,  62  Mich.  621;  Witt  ?;.  St.  Paul  etc.  Ky.  Co.,  38  Minn.  127; 
Barney  v.  Miller,  18  Iowa,  460;  Sprague  v.  Snow,  4  Pick.  54;  Bent  v. 
Rogers,  137  Mass.  192;  Bates  v.  Foster,  59  Me.  157;  8  Am.  Rep.  406. 


1465  DESCRIPTION.  §  1040 

deed  described  the  land  conveyed  by  metes  and  bounds, 
adding;  "Being  the  same  premises  conveyed  to  me  by 
Ezra  Holden,  by  deed  dated  May  7,  1829,  recorded  with 
Middlesex  deeds,  book  315,  page  120."  It  was  contended 
that  this  language  was  intended  as  a  general  description 
of  the  land  conveyed,  and  that,  as  in  some  respects  the 
particular  description  was  uncertain  and  indefinite,  the 
general  description  should  control.  But  the  court  ob- 
served: "This  clause  is  entitled  to  some  weight  in  deter- 
mining the  intention  of  the  parties,  but,  in  our  opinion, 
it  is  not  sufficient  to  overcome  the  inferences  to  be  drawn 
from  the  other  parts  of  the  deed."  ^  If  both  the  repug- 
nant descriptions  are  of  equal  authority,  the  one  more 
favorable  to  the  grantee  must  be  adopted,^ 

§  1040.  Some  illustrations. — A  deed  described  the 
land  intended  to  be  conveyed  as:  "A  part  of  fractional 
section  number  19,  being  the  half  of  the  west  half  of  the 
northwest  quarter  of  section  number  29,  in  township 
number  7  south,  of  range  14  west,  containing  forty  acres, 
and  also  a  small  fraction  of  land,  for  quantity  beginning 
at  the  northwest  corner  of  the  aforesaid  forty  acres,  thence 
running  with  the  west  line  sixteen  poles,  thence  running 
to  the  river,  a  north  corner,  supposed  to  contain  four 
acres."  The  court  observed  of  this  description:  "Though 
the  lands  are  very  awkwardly  described,  yet  we  think 
that  it  may  be  ascertained  with  sufficient  certainty  from 
the  language,  that  the  undivided  half  of  the  lands  in  con- 
troversy was  intended  to  be  conveyed.  Some  effect  will, 
if  possible,  be  given  to  the  instrument,  for  it  will  not  be 
intended  that  the  parties  meant  it  to  be  a  nullity.  It  is 
a  rule  of  construction  that  words  of  particular  description 
will  control  more  general  terms  of  description  when  both 
cannot  stand  together.  Applying  that  rule  here,  all  that 
is  said  of  'fractional  section  number  19'  must  be  rejected, 
as  contradicting  tiio  following  definite  description  of  the 

*  Lovejoy  v.  Lovett,  124  Mass.  270. 

'  Vauce  V.  Fore,  24  Cal.  436 ;  Hager  v.  Spect,  52  Cal.  579. 


§  1040  DESCRIPTION.  1466 

lands  in  section  29.  Of  this  last,  the  'half  of  the  west 
half  of  the  northwest  quarter'  is  conveyed.  This  is  defi- 
nite, except  as  to  the  'half,'  and  the  language  in  that  re- 
spect cannot  be  effective  to  convey  any  particular  half. 
But  there  is  nothing  which  forbids  a  construction  which 
will  make  it  good  for  an  undivided  half,  and  this  it  may 
receive.  It  was,  we  think,  therefore,  not  void  for  uncer- 
tainty." ^  Where  the  description  in  a  deed  taken  alone 
would  include  an  entire  tract,  the  interest  conveyed  will  be 
restricted  to  an  undivided  half,  if  there  is  a  clause  added 
to  the  description  that  the  grantor  meant  to  convey  all  the 
land  that  he  purchased  of  another,  set  forth  in  his  deed  re- 
corded in  a  given  book,  if  in  that  deed  only  an  undivided 
half  is  conveyed.^     A  description,  "my  homestead  farm  in 

1  Gano  V.  Aldridge,  27  Ind.  294.  In  this  same  case  there  was  another 
deed  made  by  the  same  grantor,  in  which  the  description  was:  "A  cer- 
tain tract  of  land  in  Posey  county,  lying  on  the  Wabash  river,  with 
numbers  as  follows :  The  half  of  a  fraction  number  29  (its  west  half  of 
the  fraction),  containing  five  acres,  more  or  less,  in  township  7  south, 
of  range  14  west."  This  description  was  held  to  be  unintelligible,  and 
without  evidence  aliunde,  no  effect  could  be  given  to  it. 

^  Flagg  V.  Bean,  25  N.  H.  (5  Fost.)  49.     In  this  case  the  description 
•was:  "Three  certain  pieces  or  parcels  of  land,  situate,  etc.,  bounded 
S.  E.  by  Bean's  land  and  the  cove,  N.  E.  by  Cocheco  river,  W.  by  Bean's 
land,  land  of  Boyle  and  of  Hurd,  and  the  road,"  to  which  was  added  a 
clause,  "meaning  to  convey  all  the  land  I  purchased  of  S.  D.  Bryant,  L. 
Bean,  and  A.  Pinkham,  referring  to  their  deeds  for  particulars,"  and  a 
further  clause,  "meaning  to  convey  all  the  land  set  forth  in  said  deed, 
and  no  more."     To  present  to  the  reader  the  question  before  the  court, 
■    and  the  construction  placed  upon  the  description,  we  take  this  extract 
from  the  language  of  Mr.  Justice  Bell,  in  delivering  the  opinion  of  the 
court:  "The  plaintiff  contended  that  this  deed  conveyed  to  Bean  the 
land  described  in  the  three  deeds  referred  to,  while  the  court  instructed 
the  jury  that  it  conveyed  to  Bean  only  what  those  three  deeds  conveyed 
to  Flagg.     It  is,  of  course,  to  be  kept  in  mind  that  the  only  question  pre. 
sented  to  the  jury  was,  whether  this  deed  was  procured  by  the  defend- 
ant by  a  fraud  practiced  upon  the  plaintiff,  by  falsely  reading  to  him  the 
deed  as  conveying  one  undivided  half  of  the  land,  when  the  deed  had  no 
Buch  language.     The  court  was  presenting  to  the  jury  the  actual  state  of 
the  title  of  Flagg  to  the  land,  and  the  operation  of  the  deed  upon  that 
interest,  as  ground  for  the  jury  to  judge  whether  there  was  a  fraud  on 
the  part  of  the  defendant,  or  only  very  great  ignorance  on  both  sides,  as 
to  the  actual  situation  of  a  very  complicated  title,  and  as  to  the  effect  of 
the  deed  upon  it,  from  which  they  might  infer  that  the  deed  was  made 
in  its  present  form  merely  by  a  gross  blunder.    The  question,  of  course, 


1467  DESCRIPTION.  §  1040 

Bath,  aforesaid,  that  I  now  live  on  and  improve,  it  being 
the  same  land  conveyed  to  me  and  one  John  Martin,  by  one 
Caleb  Bailey,  by  his  deed  of  December  2,  1816,  and  the 
said  Martin's  half  of  which  he  conveyed  to  me  by  his 
deed  of  December,  19,  1825,"  will  not  include  a  parcel  of 
adjoining  land  conveyed  to  the  grantor  by  Caleb  Bailey, 
in  1819,  though  occupied  with  the  other  as  one  farm.  By 
reference  to  the  deeds  of  1816  and  1825,  the  grantor  ex- 
pressly declared  what  he  understood  his  homestead  farm 
to  be.^  A  description  was  in  this  form :  "  My  homestead 
farm  in  Sanbornton,  and  is  the  same  land  which  was  con- 
veyed to  me  by  the  deeds  of  one  George  Whittier,  and  the 
deed  of  one  Reuben  Whittier.  One  of  said  deeds  from 
George  is  dated  October  30, 1825,  containing  about  twenty 
acres,  recorded  lib.  Ill,  fol.  594;  the  other  of  said  George's 
deeds  is  dated  June  12,  1810,  recorded  lib.  78,  fol.  859, 
containing  thirty  acres.     The  deed  from  said  Reuben  is 

was,  What  does  this  deed  in  fact  convey?  The  language  would  convey  a 
fee  simple  in  all  the  land  comprised  within  the  boundaries  set  out  in  the 
deed,  unless  its  meaning  is  limited  to  the  land  conveyed  to  the  grantor 
in  the  three  deeds  referred  to,  by  the  clause  'meaning  to  convey,'  etc. 
This  expression  is  twice  used,  and  if  the  language  following  this  phrase 
in  those  instances  was  found  in  separate  deeds,  it  would  hardly  be 
understood  to  convey  the  same  meaning.  In  the  first  instance  it  is, 
'meaning  to  convey  all  the  land  I  purchased  by  deeds,'  etc.,  and  in  the 
second,  'meaning  to  convey  all  the  land  set  forth  in  said  deeds  and  no 
more.'  But  the  whole  deed  is  to  be  construed  together;  and  it  seems  to 
us  to  be  equivalent  to  the  expression,  'meaning  to  convey  all  the  land  I 
purchased  of  B.,  etc.,  set  forth  in  their  deeds,  to  which  reference  is  made 
for  particulars,'  etc. ;  and  such  an  expression  would  be  limited  to  the 
land  actually  acquired  or  obtained  of  those  persons  by  purchase.  If  the 
last  of  the  expressions  only  was  used,  'meaning  to  convey  all  the  land 
Bet  forth  in  those  deeds,'  etc.,  it  would  not  be  easy  to  contend  that  it  was 
not  the  intention  to  convey  a  fee  simple  in  all  the  lands  described,  if  it 
were  not  that  two  of  the  deeds  referred  to  describe  'one  undivided  half 
of  the  land,  whose  boundaries  are  set  forth;  and  it  seems  very  clear  that 
a  deed  which  describes  an  entire  tract  of  land  by  its  boundaries,  and 
then  adds,  meaning  to  convey  all  the  land  set  forth  in  such  a  deed,  and 
no  more,  must  he  limited  to  one-half  of  the  land  described,  if  that  deed, 
upon  referring  to  it,  conveys  an  undivided  half  merely.  But  taking  the 
two  expressions  together,  we  tliink  the  opinion  expressed  by  the  court 
below,  that  nothing  passed  by  Flagg's  deed  to  Bean  but  the  estate  which 
he  acquired  by  the  deeds  referred  to,  is  correct." 
1  Barnard  v.  Martin,  5  N.  H.  536. 


§  1041  DESCRIPTION.  1468 

dated  25tli  December,  1815,  recorded  lib.  Ill,  fol.  593, 
containing  about  seventeen  and  a  half  acres — all  in  lot 
No,  24,  in  the  second  division  of  lots  in  Sanbornton. 
For  a  more  particular  description,  reference  may  be  had 
to  said  deeds;  and  the  same  is  my  homestead  farm."  The 
court  lield  that  this  description  did  not  include  another 
tract  used  as  a  part  of  the  homestead  in  common  with 
those  described  by  reference  to  the  deeds.^  Where  the 
land  conveyed  was  described  as  a  certain  share  of  "about 
one  hundred  acres  of  land,  be  the  same  more  or  less, 
with  the  buildings  thereon  standing,  situate  in  the  town 
of  Clielmsford,  in  the  county  of  Middlesex,  being  the 
same  estate  on  which  the  said  Moses  Cheever  now  lives, 
and  which  was  conveyed  by  Benjamin  Melvin  and  Joanna 
Melvin  to  Dr.  Jacob  Kittridge,  by  deed  dated  the  twenty- 
fifth  day  of  April,  1782,"  and  the  grantee,  as  lessee  and 
otherwise,  had  previously  occupied  the  farm  for  many 
years,  although  the  deed  to  which  reference  was  made  did 
not  include  the  whole  farm,  yet  it  was  held  that  the  title 
to  the  whole  farm  passed  to  the  grantee.^  Where  the  lot 
conveyed  is  described  as  "  being  twenty  feet  in  front,  and 
running  back  one  hundred  and  ten  feet,"  and  it  is  shown 
that  the  lot  has,  in  fact,  a  frontage  of  thirty  feet,  parol 
evidence  is  admissible  to  show  that  the  portion  sold,  and 
intended  to  be  conveyed,  and  of  which  the  grantee  took 
possession,  was  the  portion  having  a  frontage  of  twenty 
feet  on  the  east  side  of  the  lot.^ 

§  1041.  Particular  description  uncertain. — There  is 
an  apparent  exception  to  be  noted  in  cases  where  a  gen- 
eral description  will  prevail  over  a  particular  one.  These 
are  cases  where  the  particular  description  by  metes  and 
bounds  is  so  uncertain  that  it  is  impossible  to  ascertain 
by  reference  to  such  description  the  particular  parcel  of 

'  Woodman  w.  Lane,  7  N.  H.  241.  In  this  case,  the  court  examined 
several  cases  bearing  upon  the  point  in  question. 

^  Melvin  v.  Proprietors  of  Locks,  etc.,  5  Met.  15;  38  Am.  Dec.  384. 

»  Sikes  V.  Shows,  74  Ala.  382. 


1469  DESCRIPTION.  §  1042 

land  granted  by  the  deed.^  Rut-,  as  was  aptly  said  by 
Mr.  Justice  Bigelow,  this  is  not  a  case  "of  two  inconsist- 
ent descriptions,  in  which  the  general  must  yield  to  the 
particular,  but  of  an  uncertain  and  impossible  description, 
which  must  be  controlled  by  an  intelligible  though  gen- 
eral description."^  In  the  case  of  a  deed  describing  the 
land  conveyed  as  "the  whole  lot  No.  14,  containing  five 
hundred  acres  by  lot  or  grant,  be  the  same  more  or  less, 
which  lot  was  the  original  right  of  Thomas  Wallingford," 
it  appeared  that  the  right  of  Wallingford  was  to  only  four 
hundred  acres.  The  court  held  that  the  additional  clause 
did  not  restrict  the  effect  of  the  deed  to  the  four  hun- 
dred acres,  but  that  the  deed  should  be  construed  as  em- 
bracing the  whole  of  the  lot.^  Likewise  in  a  case  where 
land  was  described  as  "all  the  undivided  two-thirds  of  all 
the  lands  known  by  the  name  of  Rancho  de  San  Vicente, 
situate  in  the  county  of  Los  Angeles,  and  State  of  Cali- 
fornia," and  also  by  a  particular  description  which  was 
erroneous,  the  deed,  notwithstanding  the  errors  in  the 
particular  description,  was  held  to  convey  two-thirds  of 
the  tract  thus  generally  described.^ 

§  1042.  Parol  evidence. — If  the  language  used  in  the 
descriptive  clause  is  uncertain  and  doubtful,  the  practical 
construction  given  to  the  deed  by  the  subsequent  acts  of 

1  Sawyer  v.  Kendall,  10  Cush.  241.  See  Bott  v.  Burnell,  11  Mass.  163; 
Martin  v.  Lloyd,  94  Cal.  195;  Wade  v.  Deray,  50  Cal.  376;  Rayburn  v. 
Winant,  16  Or.  318;  18  Pac.  Rep.  588;  Barney  v.  Miller,  18  Iowa,  460; 
Jackson  v.  Loomis,  18  Johns.  81 ;  Loomis  v.  Jackson,  19  Johns.  449 ;  John- 
son V.  Simpson,  36  N.  H.  91 ;  Adams  v.  Alkire,  20  W.  Va.  480;  Hathaway 
V.  Power,  6  Hill.  453;  Jackson  v.  Clark,  7  Johns.  217 ;  Credle  v.  Hays,  88 
N.  C.  321 ;  Harkey  v.  Cain,  69  Tex.  146 ;  67  S.  W.  Rep.  637;  Arambula  v. 
Sullivan,  80  Tex.  615;  16  S.  W.  Rep.  436. 

*  Sawyer  v.  Kendall,  10  Cnsh.  241. 

»  Ela  V.  Card,  2  N.  H.  175;  9  Am.  Dec.  46. 

*  Haley  v.  Amestoy,  44  Cal.  132.  Where  a  piece  of  land  has  a  well- 
known  name,  it  may  be  described  by  that  name :  Haley  v.  Amestoy,  44 
Cal.  132.  See,  also,  Martin  v.  Lloyd,  94  Cal.  195,  where  it  is  held  that 
the  description  of  a  place  excepted  Vjy  name  shows  an  intention  to  except 
the  actual  place  named,  and  not  to  limit  its  actual  boundaries  by  an  un- 
certain description  of  them. 


§   1042  DESCRIPTION.  1470 

the  parties  may  be  shown  by  parol  evidence.^     But  where 
it  is  apparent  from  the  face  of  the  deed  that  the  grantor 
intended  to  convey  a  certain  parcel  of  land,   parol  evi- 
dence is  not  admissible  to  show  that  he  intended  to  con- 
vey another  or  additional  parcel,  notwithstanding  words 
of  general  description,  taken  alone,  without  comparison 
with  the  preceding  particular  description,  might  seem  to 
indicate  this  intention.^     Mr.  Justice  Hoar  of  Massachu- 
setts, correctly  states   the   rule:    "Where    the   terms   are 
used  in  a  description  which  are  clear  and  intelligible,  the 
court  will  put  a  construction  upon  those  terms,  and  parol 
evidence  will  not  be  admissible  to  control  the  legal  effect 
of  such  description.     But  where  any  part  of  the  descrip- 
tion is  inconsistent  with  the  rest,  and  thus  shown  to  be 
erroneous,  it  may  be  rejected,  and,  when  the  description 
given  is  uncertain  and  ambiguous,  parol  evidence  will  be 
admitted  to  show  to  what  it  truly  applies."^     But  a  de- 
scription, in  which  one  call  is,  "thence  running  easterly 
parallel  with  the  southern  line  of  said  Antelope  ranch, 
according  to  the  survey  of  the  same  made  by  the  United 
States  surveyor  general  for  said  State,  to  said  Antelope 
creek,"  cannot   be  considered  repugnant   or  ambiguous. 
Hence,  it  cannot  be  shown  by  evidence  aliunde  that  a 
straight  line  was  intended  parallel  with  the  general  course 
of  the  southern  line  of  the  property  designated  the  "An- 
telope ranch."     While  "  parallel  lines"  are  straight  lines, 
according  to  their  mathematical  definition,  yet,  in  com- 
mon language  concerning  boundaries,  this  term  is  fre- 
quently used   to  designate  lines  which  are  not  actually 
straight,  but  are  the  photographs  of  each  other.     In  ques- 
tions affecting  boundaries,  these  words  are,  in  this  sense, 
often  used  by  courts.* 

1  Love  joy  v.  Lovett,  124  Mass.  270.     See  Lanman  v.  Crocker,  97  Ind. 
163;  49  Am.  Rep.  437;  Truett  v.  Adams,  66  Cal.  618. 
^  Benedict  v.  Gaylord,  11  Conn.  332;  29  Am.  Dec.  299. 

*  In  Bond  v.  Fay,  12  Allen,  86,  88.    And  see,  also,  Waterman  v.  John- 
eon,  13  Pick.  261 ;  Truett  v.  Adams,  66  Cal.  218. 

*  Fratt  V.  Woodward,  32  Cal.  219;  91  Am.  Dec.  573.     See,  also,  Hicka 
V.  Coleman,  25  Cal.  143;  85  Am.  Dec.  103. 


1471  DESCRIPTION.  §§  1043,  1044 

§  1043.  Description  applying-  to  several  tracts. — Where 
the  description  applies  equally  to  several  tracts,  a  latent 
ambiguity  results,  which  may  be  explained  by  showing 
which  one  of  the  several  tracts  was  claimed  by  the 
grantor.^ 

§  1044.  Quantity  of  land  enumerated. — In  the  de- 
scription of  land  it  is  usual,  after  the  description  by 
metes  and  bounds  or  subdivisions,  to  add  a  clause  stating 
that  the  land  described  contained  so  many  acres.  But 
unless  there  is  an  express  covenant  that  there  is  the 
quantity  of  land  mentioned,  the  clause  as  to  quantity  is 
considered  simply  as  a  part  of  the  description,  and  will 
be  rejected  if  it  is  inconsistent  with  the  actual  area,  when 
the  same  is  capable  of  being  ascertained  by  monuments 
and  boundaries.  The  mention  of  the  quantity  of  land 
conveyed  may  aid  in  defining  the  premises,  but  it  cannot 
control  the  rest  of  the  description.^  Neither  party  has  a 
remedy  against  the  other  for  the  excess  or  deficiency, 
unless  the  difference  is  so  great  as  to  afford  a  presump- 

1  Clark  V.  Powers,  45  111.  283. 

*  Stanley  v.  Green,  12  Cal.  148;  Snow  v.  Chapman,  1  Root,  528;  Ware 
V.  Johnson,  66  Mo.  662;  Dtilton  v.  Rust,  22  Tex.  133;  Wadhama  v.  Swan, 
lOy  111.  46;  Miller  v.  Bentley,  5  Sneed,  671;  Armstrong  v.  Brownfield,  32 
Kan.  116;  Belden  v.  Seymour,  8  Conn.  19;  Ufford  v.  Wilkins,  33  Iowa, 
110;  Field  V.  Columbet,  4  Saw.  523;  Marshall  v.  Bompart,  18  Mo.  84; 
Clark  V.  Scammon,  62  Me.  47;  Mann  v.  Pearson,  2  Johns.  37;  Hall  v. 
Mayliew,  15  Md.  5ol ;  Llewellyn  v.  Jersey,  11  Mees.  &  W.  183;  Riddell 
V.  Jacksun,  14  La.  Ann.  135  ;  Commissioners  v.  Thompson,  4  McCord,  434; 
Jackson  v.  Defendorf,  1  Caines,  49;^.;  Wright  v.  Wright,  34  Ala.  194;  Doe 
ex  dem.  Phillips  v.  Porter,  3  Ark.  18;  36  Am.  Dec.  448;  Powell  v.  Clai'k, 
5  Mass.  3')5;  4  Am.  Dec.  67;  Chandler  v.  McCard,  38  Me.  5i)4 ;  Large  v. 
Penn,  6  Serg.  &  R.  488;  Pierce  v.  Faunce,  37  Me.  63;  Jackson  v.  Barrin- 
ger,  15  Johns.  471;  Bratton  v.  Clawson,  3  Strob.  127;  Allen  v.  Allen,  14 
Me.  387;  Dale  v.  Smith,  1  Del.  Ch.  1;  12  Am.  Dec.  64.  See  Mann  w. 
Pearson,  2  Johns.  37;  Hatch  v.  Garza,  22  Tex.  176;  Smith  v.  Evans,  6 
Binn.  1U2;  6  Am.  Dec.  436;  Jackson  v.  McConnell,  19  Wend.  175;  Barka- 
dale  V.  Toomer,  Harp.  290;  Smith  w.  Dodge,  2  N.  H.  303;  Jennings  v. 
Monks,  4  Met.  (Ky.)  103;  Peay  v.  Brigga,  2  Mill.  98;  12  Am.  Dec.  656; 
Jackson  v.  Sprague,  Paine,  494;  Perkins  v.  VVeijster,  L'  N.  H.  287;  Kruse 
V.  Scripps,  11  111.  98;  Pett8  v.  Gaw,  15  Fa.  St.  218;  Harris  v.  Hull,  70  Ga. 
831 ;  Luckett  v.  Siru^rgH,  73  Tex.  520;  Doyle  v.  Mellen,  15  R.  1.  523;  Scott 
V.  Peltigrew,  72  Tex.  321 ;  VViuans  v.  Cheney,  55  Cal.  567 ;  Hess  v.  Chwiuy, 


§  1045  DESCRIPTION.  1472 

tioii  of  fraud.*  Where  an  owner  of  a  league  of  land, 
having  sold  off  several  tracts,  executed  a  deed  for  the  un- 
sold balance,  which  described  it  as  "all  and  singular  a 
certain  piece  or  parcel  of  land  containing  one  thousand 
acres,  situated  and  described  as  follows:  "In  Harris 
county,  and  on  Buffalo  bayou,  adjoining  the  city  of  Hous- 
ton, being  the  undivided  part  of  the  league  granted  to 
Allen  G.  Reynolds" — it  was  held  that  the  deed  conveyed 
title  to  the  whole  of  the  unsold  balance,  although  in  excess 
of  the  number  of  acres  mentioned.^ 

§   1045.     Intention  that  quantity  shall  control. — But 

the  language  contained  in  the  description  may  be  such 
that  it  is  evident  that  the  parties  intended  to  convey  only 
a  specified  quantity  of  land,  and  in  such  case  no  more 
will  pass.  Thus  a  deed  described  a  piece  of  land  by 
boundaries  and  courses  and  distances,  with  this  restric- 
tion: "Said  tract  to  contain  just  one  acre,  and  the  dis- 
tances shall  be  so  construed."  The  court  considered  that 
the  intention  was  clearly  expressed  that  the  quantity 
should  be  one  acre,  and  that  the  distances  should  be  con- 
strued so  as  to  circumscribe  one  acre  and  no  more,  hold- 
ing that  the  parties  might  contract  so  as  to  suspend  the 
application  of  recognized  rules  of  construction  to  their 
deeds.'  And  where  the  other  terms  of  the  description 
are  not  sufficiently  certain,  the  number  of  acres  specified 
may  be  an  essential  part  of  the  description.*  And  there 
are  instances  in  which  the  specified  quantity  of  land  may 
be  considered  in  corroboration  of  other  proof.®     If  a  con- 

83  Ala.  251 ;  3  So.  Rep.  791 ;  Rand  v.  Cartwright,  82  Tex.  399 ;  18  S.  W.  Rep. 
794 ;  Case  v.  Dexter,  106  N.  Y.  548 ;  Thayer  v.  Finton,  108  N.  Y.  394 ;  Ray- 
mond V.  Coffey,  5  Or.  132;  Moran  v.  Lezotte,  54  Mich.  83;  19  N.  W.  Rep. 
757;  Benton  v.  Horsley,  71  Ga.  619;  Andrew  v.  Watkins,  26  Fla.  890;  7 
S.  W.  Rep.  876.    And  see  Hasleton  v.  Dickinson,  51  Iowa,  244. 

1  Wadhams  v.  Swan,  109  111.  46. 

»  Hunter  v.  Morse,  49  Tex.  219. 

*  Sanders  v.  Godding,  45  Iowa,  463. 

*  Hall  V.  Shotwell,  66  Cal.  379;  Kirkland  v.  Way,  3  Rich.  4;  45  Am. 
Dec.  752;  Hostetter  v.  Los  Angeles  T.  Ry.  Co.,  108  Cal.  38;  Ellis  v.  Har- 
ris, 106  N.  C.  395. 

*  McClintock  v.  Rogus,  11  111.  279.     See,  also,  Hicka  v.  Coleman,  25 


1473  DESCRIPTION.  §  1046 

tract  at  an  agreed  price  per  acre  has  been  made  for  the 
sale  of  a  tract  of  land,  represented  as  containing  a  speci- 
fied number  of  acres,  and  there  is  a  deficiency  in  quan- 
tity, a  court  of  equity,  even  after  the  execution  of  the  deed 
cousumraating  the  contract  of  purchase,  will  abate  the 
value  of  the  deficiency  at  the  agreed  price  per  acre  from 
the  portion  of  the  purchase  money  remaining  unpaid.^ 

§  1046.  Words  "more  or  less." — When  land  is  de- 
scribed, and  the  quantity  is  stated  with  the  qualification 
"more  or  less,"  these  words  are  used  as  an  approximate 
designation  of  the  quantity  contained  within  the  bound- 
aries, and  do  not  refer  to  the  state  of  the  title.^  Where  a 
tract  of  land  originally  described  as  eight  hundred  acres, 
"more  or  less,"  was  conveyed  by  several  successive  deeds, 
describing  the  land  similarly,  but  with  the  omission  of 
the  words  "more  or  less,"  and  the  last  purchaser  conveyed 
an  undivided  interest  in  it  to  three  persons,  in  an  aggre- 
gate of  just  eight  hundred  acres,  and  subsequently  con- 
veyed all  his  interest  in  the  land,  describing  it  as  excess 
"more  or  less  above  the  eight  hundred  acres  heretofore 
conveyed  by  this  vendor,"  it  was  held  that  the  last  grantee 
took  any  excess  over  the  eight  hundred  acres.^  The  word 
"about,"  used  as  qualifying  the  number  of  acres,  means 
simply  a  near  approximation  to  the  number  mentioned  in 

Cal.  122;  85  Am.  Dec.  103;  White  v.  Gay,  9  N.  H.  126;  31  Am.  Dec.  224; 
HiK'inbotham  v.  Stoddard,  72  N.  Y.  94;  Slack  v.  Dawes,  3  Tex.  Civ.  App! 
520;  Moran  v.  Lezotte,  54  Mich.  83;  19  N.  W.  Rep.  757;  Santa  Clara  M.' 
Assn.  V.  Quicksilver  M.  Co.,  8  Saw.  330;  17  Fed.  Rep.  657;  Baldwin 
V.  Brown,  16  N.  Y.  359;  Bell  v.  Sawyer,  32  N.  H.  72;  Rioux  v.  Cormier 
75  Wis.  56o;  44  N.  W.  Rep.  654. 

»  Thompson  v.  Catlett,  24  W.  Va.  524. 

»  WillianiHon  v.  Hall,  62  Mo.  405;  Armstrong  v.  Brownfield,  32  Kan. 
116,  and  cases  cited;  Howell  v.  Merrill,  30  Mich.  2b3;  McCoun  v.  De- 
lany,  3  Biblj,  46;  6  Am.  Dec.  635;  Clark  v.  Scammon,  62  Me.  47;  Dale 
V.  Smith,  1  Del.  Ch.  1;  12  Am.  Dec.  64;  Cakes  v.  De  Lancey,  133'n.  Y. 
227;  28  Am.  St.  Rep.  628;  Paine  v.  Upton,  87  N.  Y.  327;  41  Am.  Rep! 
371;  Belknap  V.  Sealey,  14  N.  Y.  143;  67  Am.  Dec.  120;  Dow  v.  Jewell* 
18  N.  H.  340;  45  Am.  Dec.  371 ;  Triplett  v.  Allen,  26  Gratt.  721;  21  Am! 
Rep.  320;  Stevens  v.  McKni^ht,  40  Ohio  St.  341. 

»  Troy  V.  Ellis',  60  Tex.  630. 
D££i>9,  Vol.  11.-93 


§  1046  DESCRIPTION.  1474 

the  deed.^  By  the  use  of  the  words  "more  or  less,"  it  is 
understood  that  the  parties  assume  the  risk  of  a  gain  or  a 
loss  in  the  quantity  of  land  estimated.  But  an  inquiry 
into  a  fraud  which  may  have  been  committed  by  either 
party  is  not  precluded  by  the  use  of  that  term.^ 

1  Stevens  v.  McKnight,  40  Ohio  St.  341. 

'  McOoun  V.  Delany,  3  Bibb,  46;  6  Am.  Dec.  635.  These  words 
"more  or  less"  have  been  construed  in  Blaney  v.  Eice,  20  Pick.  62;  32 
Am.  Dec.  204;  Phipps  v.  Tarpley,  24  Miss.  597;  Tyson  v.  Hardesty,  29 
Md.  305;  Poague  v.  Allen,  3  Marsh.  J.  J.  421;  Shipp  «.  Swan,  2  Bibb,  82; 
Sullivan  v.  Ferguson,  40  Mo.  79;  Baynard  v.  Eddings,  2  Strob.  374;  Hoff- 
man V.  Johnson,  1  Bland,  103 ;  Brady  v.  Hennion,  8  Bosw.  528 ;  Gentry 
V.  Hamilton,  3  Ired.  Eq.  376;  Hunt  v.  StuU,  3  Md.  Ch.  24;  Nelson  v. 
Matthews,  2  Hen.  &  M.  164 ;  3  Am.  Dec.  620 ;  Davis  v.  Sherman,  7  Gray, 
291 ;  Frederick  v.  Youngblood,  19  Ala.  680 ;  54  Am.  Dec.  209. 


